THIS MEMORANDUM TAKES
ACCOUNT OF AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE
BILL AS INTRODUCED

(Circulated by authority of the Minister for Justice and
Customs,

Senator the Honourable Chris Ellison)

OUTLINE

The Law Enforcement Integrity Commissioner
Bill 2006 (the Bill) establishes an Integrity Commissioner who will
head up the Australian Commission for Law Enforcement Integrity
(ACLEI), an independent body with powers to prevent, detect and
investigate corruption within Australian Government law enforcement
agencies, including the Australian Federal Police (AFP), the
Australian Crime Commission (ACC) and any other Commonwealth agency
that has a law enforcement function and is prescribed by the
Regulations.

The main purpose of the Bill is to enhance the
integrity of Commonwealth law enforcement agencies. The Bill will
provide a framework for investigating and dealing with allegations
of corruption within Commonwealth law enforcement agencies. The
Integrity Commissioner may refer or recommend that criminal, civil
and/or confiscation proceedings be brought for contraventions of
Commonwealth laws by members and staff members of law enforcement
agencies.

The Integrity Commissioner will investigate
corruption issues using a combination of inquiry and investigative
powers, assembling evidence to support prosecutions. The Integrity
Commissioner will also have powers to make recommendations for
disciplinary and/or employment action.

The Bill provides a means for detecting and
investigating corruption in the Commonwealth law enforcement
agencies, solely because of the role these agencies have in law
enforcement, not in any way because of a view that these agencies
are of any greater risk of corrupt behaviour.

The Bill provides for the appointment of an
Integrity Commissioner and prescribes his or her functions and
powers in investigating corrupt conduct and corruption issues
within the Australian Government law enforcement agencies. The
Integrity Commissioner may initiate his or her own investigations,
or the Minister, the head of an agency or any person may refer any
information about a corruption issue directly to the Integrity
Commissioner.

The Integrity Commissioner will have
jurisdiction to investigate allegations of corruption made against,
or relating to, State and Territory law enforcement officers who
are seconded to a Commonwealth Government agency. The ACLEI and the
States will share the oversight of State and Territory officers.
The Bill will not impact on the role of the State and Territory
integrity agencies but will preserve their existing powers and
functions. The Bill also creates a Parliamentary Joint Committee to
oversee the operation of the ACLEI, to ensure that the Integrity
Commissioner is accountable to Parliament.

The Integrity Commissioner will be a statutory
office holder appointed by the Governor-General. He or she will be
responsible for the investigation and reporting of corruption
matters or alternatively, referring certain matters to another
agency for investigation. The Integrity Commissioner will then
manage, oversee or review the investigation where appropriate.
Further, the Bill will provide for information sharing between
agencies to ensure effective and efficient investigations.

The Attorney-General is authorised under the
Bill to prevent the disclosure of information which would be
contrary to public or national interest. The Attorney- General may
issue a certificate prohibiting the disclosure of specific
information by specific methods. A certificate may also impact on
information sharing between agencies, and the mandatory reporting
provisions.

The Integrity Commissioner is given discretion
to choose a particular method of dealing with each corruption issue
based on the most suitable approach to each individual matter,
subject to the Minister’s power to order a public inquiry.
The Bill provides the Integrity Commissioner with powers to conduct
a Royal Commission style investigation. Many provisions of the Bill
mirror the provisions contained in the Royal Commissions Act
1902 and the Australian Crime Commission Act 2002 . The
Integrity Commissioner may conduct public or private hearings to
determine the nature and extent of a corruption issue.

The Bill requires the Integrity Commissioner
to inform the Minister, the head of the agency concerned, the
complainant and, where appropriate, the subject of the
investigation of the initiation, progress and outcomes of the
investigation. The Integrity Commissioner is required to report all
findings at the conclusion of an investigation, subject to
provisions contained in the Bill ensuring the confidentiality of
protected information. The Integrity Commissioner may also report
to the Prime Minister and Parliament if he or she believes that
there is a failure by the head of an agency to take adequate
remedial action.

The Integrity Commissioner will manage ACLEI,
which will have the function of assisting the Integrity
Commissioner in performing his or her functions. ACLEI staff will
provide investigative, intelligence and administrative support to
the Integrity Commissioner. For the purpose of corruption
investigations ACLEI Authorised Officers will have the same powers
of arrest as a constable of police and will be able to apply for
and execute search warrants. The ACLEI will also draw on staff and
technical resources of existing law enforcement agencies for
assistance where necessary.

The Bill provides the Integrity Commissioner
with the power to compel the giving of sworn testimony, overriding
the privilege against self-incrimination. These are supported by
criminal offences for conduct in the nature of contempt .
Further, the Integrity Commissioner has the power to compel the
production of documents and things. In addition, if the Integrity
Commissioner holds private hearings, there are penalties for
disclosure of information relating to an investigation by persons
summonsed to provide evidence to the Integrity Commissioner and
others legitimately consulted by such witnesses.

Finally, the Bill includes a procedure for
investigating complaints of corruption issues within ACLEI
(including the Integrity Commissioner). The Bill provides that the
Minister may authorise a special external investigation into an
ACLEI corruption issue.

This Bill was originally introduced into the
House of Representatives on 27 March 2006 and was subsequently
referred to the Senate Legal and Constitutional Legislation
Committee (the Senate Committee). On 11 May 2006 the Senate
Committee handed down its report. After consideration of the Senate
Committee’s report and recommendations, the Government
proposed a number of amendments to the Bill as it was introduced.
These were accepted by the House of representatives on 21 June
2006.

FINANCIAL IMPACT STATEMENT

$9.5m was allocated in the 2005-06 Budget. Of
this, $0.6m was allocated to the Attorney-General’s
Department to fund the establishment of ACLEI and $8.9m was
allocated to ACLEI. Funding for ACLEI is currently being held by
the Attorney- General’s Department, pending establishment of
ACLEI.

The following abbreviations are used in this
revised explanatory memorandum:

A reference in this Explanatory Memorandum to
a numbered recommendation of the Senate Committee is a reference to
a recommendation made in the report of the Senate Committee’s
review of the provisions of the Law Enforcement Integrity
Commissioner Bill 2006, the Law Enforcement Integrity Commissioner
(Consequential Amendments) Bill 2006 and the Law Enforcement (AFP
Professional Standards and Related Measures) Bill 2006, tabled on
11 May 2006.

NOTES ON CLAUSES

PART 1 - PRELIMINARY

Clause 1: Short Title

Clause 1 provides that the Act may be cited as
the Law Enforcement Integrity Commissioner Act 2006 .

Clause 2: Commencement

Item 1: Clause 1, clause 2 and any
other provision of the Bill that is not specifically mentioned in
this provision, will commence on the day on which the Bill receives
Royal Assent.

Item 2: Clauses 3 to 224 are to
commence on a single day to be fixed by Proclamation. However, if
any of these provisions do not commence within the period of 6
months beginning on the day on which this Act receives Royal
Assent, they commence on the first day after the end of that
period.

Clause 3: Objects of this Act

The overall aim of the Bill is to continuously
improve the integrity of the Commonwealth law enforcement agencies
by establishing an independent body responsible for detecting and
investigating corrupt behaviour within these agencies. The Bill
aims to deter corruption by increasing the risk of detection. The
Bill enables criminal offences to be prosecuted and civil penalty
proceedings to be brought, where necessary following an
investigation.

Clause 4: Application of Act

The Integrity Commissioner will have
jurisdiction within and outside Australia and every external
Territory, to enable the Integrity Commissioner to conduct hearings
or investigations into officers working overseas. The Bill contains
mechanisms to enhance cooperation between ACLEI and similar
organisations from State and Territory jurisdictions. For example,
clause 26 allows the Integrity Commissioner to investigate a
corruption issue jointly with a government agency or integrity
agency of a State or Territory. Clause 195 also allows members of
State or Territory police services or State or Territory integrity
commissions to assist with investigations.

PART 2- INTERPRETATION

Clause 5: Definitions

This Clause defines terms and expressions used
frequently throughout the Bill in order to avoid doubt and clarify
the intended meaning of each word for the specific purposes of the
Bill.

“ACC” means the Australian Crime
Commission as established by the Australian Crime Commission Act
2002 .

“ACLEI” means the Australian
Commission for Law Enforcement Integrity which is established by
clause 195 of the Bill.

“AFP” means the Australian Federal
Police. Given the role the AFP has in Commonwealth law enforcement,
it is appropriate to have an independent body to regulate
professional standards of AFP members. The Integrity Commissioner
may make arrangements for members or staff of the AFP to be
seconded to ACLEI to assist the Integrity Commissioner in the
performance of his or her functions (see clause 199).

“Assistant Integrity Commissioner”
is the title given to an officer appointed under clause 185 of the
Bill to assist the Integrity Commissioner in the performance of his
or her functions under the Bill.

“Assisting officer” is a person
who assists in the execution of a warrant for a person’s
arrest or a search warrant. This term is used in clause 117 of the
Bill. An assisting officer may be an authorised officer, a member
or special member of the Australian Federal Police, or a person
appointed by an authorised officer who is executing a warrant. This
last category could, for example, include specialists such as
locksmiths or IT experts.

“Australian Commission for Law
Enforcement Integrity” (ACLEI) as established under clause
195. ACLEI is an independent body established to assist the
Integrity Commissioner and/or any Assistant Integrity Commissioner
in performing their functions.

“Authorised officer” is either the
Integrity Commissioner or a person authorised under clause 140. The
powers and duties of authorised officers are set out in Divisions 3
to 6 of Part 9 of the Bill.

“Civil penalty proceeding” is a
proceeding commenced in respect of a contravention of a civil
penalty provision. The definition covers proceedings for any civil
penalty provision in Commonwealth, State or Territory law. The
phrase is used in clause 142, which deal with the types of evidence
and information the Integrity Commissioner is permitted to use
and/or communicate. The phrase is also used in clause 211, which
deals with an exception to the general rule that ACLEI staff
members are not compellable in court proceedings.

“Commonwealth Government agency”
means either a Department of the Commonwealth, or a body (whether
incorporated or not) established for a public purpose under a law
of the Commonwealth. This definition is relevant to the definition
of the term “law enforcement agency” in the Bill. One
of its key usages is in clause 10, which sets out the classes of
people over whom ACLEI may have jurisdiction. Subclause 10(4)
includes staff members of prescribed Commonwealth government
agencies.

“Confiscation proceeding” means a
proceeding, other than a criminal prosecution, brought under either
the Proceeds of Crime Act 1987 or the Proceeds of Crime
Act 2002, or any other corresponding law within the meaning of
either of those Acts. For example, the clause is used in clauses
96, 142 and 211.

“Corruption investigation” is
defined to mean an investigation of a corruption issue, or an
investigation of an ACLEI corruption issue. “ACLEI corruption
issue” is defined in clause 8.

“Criminal proceeding” is either a
prosecution for an offence under a Commonwealth, State or Territory
law, or a confiscation proceeding. For example, the term is used in
clauses 80 and 96.

“Data” is defined by reference to
section 3C of Part 1AA of the Crimes Act 1914 , which defines
the term to include:

(a) information in
any form; or

(b) any program (or
part of a program).

“Data held in a computer” is
defined by reference to section 3C of Part 1AA of the Crimes Act
1914 , which defines the term to include:

(a) data held in
any removable data storage device for the time being held in a
computer; or

(b) data held in a
data storage device on a computer network of which the computer
forms a part.

“Data storage device” is defined
by reference to section 3C of Part 1AA of the Crimes Act
1914 to mean a thing containing, or designed to contain, data
for use by a computer.

“Disciplinary proceedings” is
defined to include actions taken under Subdivision D of Division 5
of Part V of the Australian Federal Police Act 1979 (AFP
Act). This subdivision would be inserted into the AFP Act by the
Law Enforcement (AFP Professional Standards and Related Measures)
Bill 2006 to deal with actions relevant to performance management
in the AFP, and the assessment of employment suitability in cases
where there is an issue about an AFP appointee’s conduct.

“Eligible seizable item” means a
dangerous item or an item that could be used to escape. The term is
used in clauses 110, 112, and 113 which deal with the procedures
for obtaining a search warrant.

“Engage in conduct” includes an
act or an omission. Among other things, this definition gives the
Integrity Commissioner power to deal with corruption that results
in failure to exercise law enforcement powers as well as corruption
that leads to active misconduct.

“Evidential material” includes
material that is relevant to an investigation or inquiry. The term
is used in Division 4 of Part 9 of the Bill, which deals with
search warrants. The term is defined differently depending on
whether the warrant being executed is an investigation warrant or
an offence warrant.

“Frisk search” has the same
meaning as is given to the term in Part 1AA of the Crimes Act
1914, which is:

(a) a search of a
person conducted by quickly running the hands over the
person’s outer garments; and

(b) an examination
of anything worn or carried by the person that is conveniently and
voluntarily removed by the person.

A frisk search of a person can be authorised
by either an offence warrant or an investigation warrant (see
clauses 108 and 109)

“Government agency” means either,
a Department of the Commonwealth or of a State or Territory, or a
body established for a public purpose under law. The term is used
throughout the Bill.

“Head” of government agency is
either the Commissioner of the AFP, the CEO of the ACC or, in the
case of a prescribed Commonwealth government agency, the person
holding the office that is prescribed by the Regulations. Where the
Commonwealth government agency is not a prescribed Commonwealth
government agency, the head will either be the Secretary or the
person holding or performing the duties of the principal officer
for that body.

“Integrity agency” means an agency
that is established under law for the purpose of investigating
corruption in the police force of a State or Territory. This would
include, but is not limited to, the Police Integrity Commission of
New South Wales, the Crime and Misconduct Commission (Qld) and the
Corruption and Crime Commission (WA)

“Integrity Commissioner” means the
Integrity Commissioner as appointed under Clause 171 of this Bill.
The Integrity Commissioner is responsible for addressing complaints
of corruption, implementing investigations into corruption issues,
reporting on corruption issues and providing recommendations and
advice to the Minister and agencies. The Integrity Commissioner is
to manage the ACLEI and, as the head of the body, he or she will
report to the Minister.

“Inter-Governmental Committee” is
defined by reference to the definition of that term in section 8 of
the Australian Crime Commission Act 2002 which establishes a
committee consisting of:

(a) a member to
represent the Commonwealth, being the Commonwealth Minister;
and

(b) in the case of
each participating State—a member to represent that State,
being a Minister of the Crown of that State nominated by the
Premier of that State.

“Investigation warrant” is to be
distinguished from an offence warrant. An investigation warrant is
broader and may be sought, pursuant to clause 108, where there is
suspicion of evidential material relevant to an investigation of a
corruption issue or public inquiry.

“Issuing officer” for an
investigation warrant is a Judge of the Federal Court of Australia,
a Federal Magistrate or a Judge of a State or Territory. An issuing
officer for an offence warrant will be a magistrate.

“Law enforcement agency” includes
the AFP, the ACC, the former National Crime Authority (as principal
predecessor of the ACC) and may be extended by the Regulations to
include another Commonwealth government agency that has a law
enforcement function. Law enforcement agencies, as defined here,
are the bodies over which the Integrity Commissioner has
jurisdiction.

“Law enforcement function”
includes the investigation, preparation for prosecution, as well as
dealing with information for the purposes of assisting the
enforcement of Commonwealth laws. The term also includes activities
which assist in these functions.

“Law enforcement secrecy
provision” includes those provisions of the Financial
Transaction Reports Act 1988, the Surveillance Devices Act
2004, and the Telecommunications (Interception and Access)
Act 1979 that deal with secrecy obligations of, and provisions
regarding access to, information gathered under each Act. The
distinguishing feature of these provisions is that they provide a
complete regime for the use and protection of information obtained
by particular means. Law enforcement secrecy provisions have a
similar status to taxation secrecy provisions. The Bill preserves
the effect of these specific kinds of secrecy provisions (as
opposed to general “secrecy provisions”) by providing
exceptions to general rules of compellability in relation to
information obtained pursuant to these provisions.

“Legal aid officer” is defined to
include those working in State or Territory based organisations
which provide legal aid as well as persons who might need to
consider otherwise confidential information in the course of
determining applications under clause 103 to the Attorney-General
for legal assistance.

“Manage an investigation of a corruption
issue” is defined as the Integrity Commissioner providing
detailed guidance on the planning and carrying out of an
investigation. This is the more stringent form of supervision the
Integrity Commissioner may exercise over the investigation of a
corruption issue by a law enforcement agency. The head of the
agency involved must ensure that staff members co-operate with the
Integrity Commissioner and adhere to any instructions provided.

“Nominated contact of a law enforcement
agency” means either the head of an agency, or a nominated
staff member, with whom the Integrity Commissioner will have direct
contact, to whom the Integrity Commissioner will provide
information, and from whom the Integrity Commissioner will receive
information, for the purpose of managing or overseeing the
investigation of a corruption issue by a law enforcement
agency.

“Offence warrant” is to be
distinguished from investigation warrant. An offence warrant will
be sought (pursuant to clause 108) where there is suspicion of
evidential material relevant to a particular offence against the
law of a Commonwealth.

“Official matter” means a
corruption investigation, a hearing or a court proceeding. An
official matter connected with a summons may be protected by a
non-disclosure notation (see clauses 91 and 92).

“Ordinary search” of a person does
not include a frisk search or a strip search and extends only to
the removal and examination of outer garments such as coats and
shoes. An ordinary search can be authorised by either an offence
warrant or an investigation warrant (see clauses 108 and 109).

“Oversee” means the Integrity
Commissioner provides general guidance on the planning and carrying
out of an investigation. This is the less stringent form of
supervision the Integrity Commissioner may exercise over the
investigation of a corruption matter by a law enforcement agency.
The head of the agency involved must ensure that staff members
co-operate with the Integrity Commissioner and adhere to any
instructions provided.

“Public inquiry” means a public
inquiry into a corruption issue by the Integrity Commissioner. Part
8 of the Bill provides for the Minister to initiate public
inquiries.

“Responsible Minister for a Commonwealth
government agency” established by an Act will be the Minister
administering for that Act and in any other case the Minister who
has general responsibilities of the agency. The term is used in
clauses 57 and 67 which deal with follow up and final reports on
investigations.

“Secondee” means a staff member of
the AFP, the ACC, the former NCA or a prescribed law enforcement
agency who is identified as a secondee in subclause 10(5) or 11(2)
of the Bill. Secondees are officers of other agencies (whether or
not that agency is a law enforcement agency) whose services are
made available to a law enforcement agency. Secondees will usually
be members of State or Territory police forces or employees of
government agencies. A secondee to ACLEI is a person whose services
are made available to the Integrity Commissioner.

“Secrecy provision” means a
provision of Commonwealth law that prohibits or purports to
prohibit disclosure of the contents of a document or the production
of a thing. The term is to be distinguished from the term
“law enforcement secrecy provision” and a
“taxation secrecy provision”. A person will not
generally be able to rely on a secrecy provision in resisting
disclosure or production of a document or thing however a person
will be able to rely on a “law enforcement secrecy
provision” and a “taxation secrecy provision” in
these circumstances (for example, see clauses 21 and 22).

“Section 149 certified
information” is information that the Attorney-General has
certified cannot be disclosed to, by or at the direction of the
Integrity Commissioner for the reason that such disclosure would be
contrary to the public interest for one or more of the reasons set
out in subclause 149(2). These reasons include where disclosure
would prejudice the conduct of investigations, the fair trial of a
person, or the effectiveness of operational methods.

“Sensitive information” is
information the disclosure of which might have a prejudicial effect
on specified public and private interests. While the Integrity
Commissioner is required to comply with a certificate issued by the
Attorney-General under clause 149, he or she must make an
independent judgment as to whether sensitive information should be
disclosed in any particular case. For example, in providing copies
of referred material to the Senate and House of Representatives
under subclause 57(4), the Integrity Commissioner may
exclude sensitive information from the copied material but
must exclude clause 149 certified information. The
definition of “sensitive information” is similar to,
but broader than, the class of information that may be certified
under clause 149 of the Bill. For example, sensitive information
includes information that could prejudice the protection of public
safety or would involve unreasonably disclosing a person’s
personal affairs or confidential commercial information. The
criteria for non-disclosure also differ between sensitive
information and clause 149 certified information. In the case of
clause 149 certified information, the Attorney-General needs to be
satisfied that disclosure of the information would cause the
prejudice in the listed circumstances. For sensitive information,
there is always a double test, namely whether the disclosure
could cause the prejudice, and the need to consider the
balance between that possibility of prejudice and the interest
served by its disclosure.

“Serious corruption” is one of two
defined gradations of corrupt conduct the other being
“systemic corruption”. These categories are defined to
assist in administrative decisions including priorities and which
entity should deal with which complaints. Clause 16 provides that
the Integrity Commissioner is to give priority to complaints of
serious corruption and systemic corruption. A corruption issue that
relates to corrupt conduct constituting serious corruption or
systemic corruption must be referred to the Integrity Commissioner
for investigation (clause 20).

“Significant corruption issue” is
either an issue relating to conduct that constitutes serious
corruption or systemic corruption, an issue which is so prescribed
by regulations or an issue that the Integrity Commissioner and a
head of a law enforcement agency agrees is so under clause 17. A
significant corruption issue identified by the head of a law
enforcement agency must be referred to the Integrity Commissioner.
The Integrity Commissioner is entitled to investigate any
corruption issues but the identification of significant corruption
issues is a mechanism intended to assist the Integrity Commissioner
to focus on the most important cases

“Special investigation” means an
external investigation authorised by the Minister under Division 4
of Part 12 of the Bill. Special investigations are only authorised
if an ACLEI corruption issue arises. This is an issue concerning
possible corrupt conduct within ACLEI (see clause 8).

“Special investigator” means the
person authorised by the Minister to conduct a special
investigation into an ACLEI corruption issue.

“State or Territory government
agency” means a Department of State or Territory, or a
body (whether incorporated or not) established for a public purpose
under a law of a State or Territory.

“Strip search” is defined by
reference to the definition given to that term in Part 1AA of the
Crimes Act 1914 , which is, a search of a person or of
articles in the possession of a person that may include:

(a) requiring the
person to remove all of his or her garments; and

(b) an examination
of the person’s body (but not of the person’s body
cavities) and of those garments.

The term is used in clause 114, which provides
that search warrants may not authorise a strip search.

“Systematic corruption” is one of
two defined gradations of corrupt conduct the other being
“serious corruption”. These categories are defined to
assist in administrative decisions including priorities and which
entity should deal with which complaints. Clause 16 provides that
the Integrity Commissioner must give priority to complaints of
serious corruption and systemic corruption. A corruption issue that
relates to corrupt conduct constituting serious corruption or
systemic corruption must be referred to the Integrity Commissioner
for investigation (clause 20).

“Taxation secrecy provision” is a
secrecy provision in a “taxation law”, which is defined
in section 2 of the Taxation Administration Act 1953 to
include that Act as well as any other Act generally administered by
the Australian Tax Commissioner, the A New Tax System
(Australian Business Number) Act and any regulations to these
Acts. Taxation secrecy provisions have a similar status to law
enforcement secrecy provisions. The Bill preserves the effect of
these specific kinds of secrecy provisions (as opposed to
“general” secrecy provisions) by providing exceptions
to general rules of compellability in relation to information
obtained pursuant to these provisions (for example, see clauses 20,
21 and 80 of the Bill)

“Thing relevant to an indictable
offence” is defined by reference to the definition given to
that term in Part 1AA of the Crimes Act 1914 . Section 3C of
the Crimes Act defines the term to mean:

(a) anything with
respect to which an indictable offence against any law of the
Commonwealth or Territory has been committed or is suspected, on
reasonable grounds, to have been committed or anything with respect
to which a State offence that has a federal aspect, and that is an
indictable offence against the law of that State, has been
committed or is suspected, on reasonable grounds, to have been
committed; or

(b) anything as to
which there are reasonable grounds for suspecting that it will
afford evidence as to the commission of any such offence; or

(c) anything as to
which there are reasonable grounds for suspecting that it is
intended to be used for the purpose of committing any such
offence.

Clause 6: Meaning of engages in corrupt
conduct

This Clause provides that any act or omission
which involves the abuse of office as a staff member of a law
enforcement agency, or conduct which perverts, or is for the
purpose of perverting the course of justice, or, having regard to
the staff member’s duties and powers, conduct engaged in for
the purpose of corruption of any other kind, will be deemed to be
engaging in corrupt conduct for the purposes of the Bill. In
circumstances where a law enforcement agency is prescribed by the
Regulations, a staff member will only be engaging in corrupt
conduct for the purposes of the Bill if the conduct relates to the
performance of a law enforcement function of the agency. The
definition covers the main elements of significance in corruption
issues and is consistent with the definitions of corruption used as
a basis for forfeiture of superannuation entitlements in the
Crimes (Superannuation) Act and Part VA of the Australian
Federal Police Act 1979 . The term “engage in
conduct” is defined in clause 5 of the Bill as meaning doing
an act and omitting to do an act. By including omitted acts, the
Bill provides that a failure to report corrupt conduct or similar,
will also be regarded as engaging in corrupt conduct. The subject
conduct may also be conduct that was engaged in prior to the
commencement of the Bill. The term “staff member”
is defined in clause 5 of the Bill by reference to clause 10. The
term “law enforcement agency” is defined in clause 5 of
the Bill.

Clause 7: Meaning of corruption
issue

The Clause provides that a corruption issue
exists where a staff member of a law enforcement agency has
engaged, is engaging, or may at any time in the future, engage in
corrupt conduct. The capacity to investigate cases where corrupt
conduct is foreseeable in the future makes the Integrity
Commissioner’s role proactive in addressing corruption. The
Clause also provides for investigations to be commenced in
circumstances where the identity of the staff member of the agency
alleged to be engaging in corrupt conduct is unknown. This
provision is to ensure that corruption issues cannot be ignored
because the person concerned has not been identified at the
outset.

Clause 8: Meaning of ACLEI corruption
issue

An ACLEI corruption issue exists where a
person who is, or has been a staff member of ACLEI has engaged, or
is engaging, in corrupt conduct, or may do so in the future. Part
12 of the Bill prescribes the practices and procedures required for
investigating ACLEI corruption issues. The Clause also provides for
investigations to be commenced in circumstances where the identity
of the staff member alleged to be engaging in corrupt conduct is
unknown. This provision is to ensure that corruption issues within
ACLEI cannot be ignored because the person concerned has not been
identified at the outset. The term “staff member” of
ACLEI is defined in clause 5 of the Bill by reference to clause 11
and includes secondees.

Clause 9: Corruption issue that relates to
law enforcement agency

This Clause provides that a corruption issue
relates to a law enforcement agency where the issue arises due to
the corrupt conduct of a person in their capacity as a staff member
of that agency. The term “staff member” is defined in
clause 5 of the Bill by reference to clauses 10 and 11. The clause
intends to avoid doubt in circumstances where a corruption issue
relates to a secondee or contractor. The term “law
enforcement agency” is defined in clause 5 of the Bill.

Clause 10: Staff members of law enforcement
agencies

The purpose of the Clause is to avoid doubt
and identify the persons who are subject to the jurisdiction of the
Integrity Commissioner.

The Clause identifies persons who are
considered to be staff members of law enforcement agencies for the
purposes of the Bill. Staff members of the AFP, the ACC and the
former NCA are defined by reference to persons and classes of
persons referred to in the Acts establishing those agencies.
Staff members of prescribed law enforcement agencies are to be
members of classes of persons prescribed by the Regulations.

The clause also specifies the classes of staff
members of a law enforcement agency that are secondees for the
purposes of the Bill. These include not only people who are
seconded in the conventional sense, but also other people who are
appointed to perform duties that assist a law enforcement agency in
the performance of its functions while they remain employee of
other agencies. This will ensure that the secondee provisions in
the Bill apply to all staff members of a law enforcement agency who
have a home agency (and, in some cases, an integrity agency) that
has a legitimate interest in their conduct while assisting the law
enforcement agency in the performance of its functions.

Clause 11: Staff members of ACLEI

This Clause identifies persons who are
considered to be staff members of ACLEI for the purposes of the
Bill and includes the Integrity Commissioner, any Assistant
Integrity Commissioners, Public Service Act staff, secondees,
consultants, contractors and any legal practitioners appointed to
assist the Integrity Commissioner. The purpose of the Clause is to
avoid doubt and identify the persons who are subject to particular
provisions of the Bill, such as under Part 12 regarding the
investigation of an ACLEI corruption issue.

Clause 12: Applying Act to staff member of
former NCA

For the purposes of the Bill, a staff member
of the former NCA will be treated as if he or she were a staff
member of the ACC. The ACC was established in 2002 and effectively
combined the NCA with two non-investigative entities, the
Australian Bureau of Criminal intelligence and the Office of
Strategic Crime Assessments. As the Bill operates retrospectively,
this Clause intends to allow the previous conduct of NCA staff
members to be subjected to an investigation by the ACLEI where
necessary, despite the fact that the body is no longer in
existence.

Clause 13: State offences that have a
federal aspect

This Clause identifies the circumstances in
which a State offence will have a Federal aspect as being where an
offence may fall within Commonwealth legislative power because of
its elements, the circumstances in which the offence was committed,
or because the Integrity Commissioner’s investigation of the
offence is incidental to the investigation of a corruption issue.
The Clause is based on a similar provision (section 4A) in the
Australian Crime Commission Act 2002 . The clause is
necessary to give the Integrity Commissioner and ACLEI
investigators the widest constitutionally permissible power to deal
with corrupt activity by persons subject to the Integrity
Commissioner’s jurisdiction. An example of the role of this
definition can be found in the definition of “things relevant
to an indictable offence”, which is relevant to applications
for search warrants under clauses 110, 112 and 113. In applying for
authority to seize things in relation to persons or premises an
authorised person is required to state that he or she believes on
reasonable grounds that the thing to be seized is relevant to an
indictable offence. This term is defined in Clause 5 to include
“anything with respect to which a State offence that has a
federal aspect , and that is an indictable offence against the
law of that State, has been committed or is suspected, on
reasonable grounds, to have been committed”

PART 3 - THE INTEGRITY
COMMISSIONER

Clause 14: Integrity Commissioner

The clause creates the office of the Integrity
Commissioner. Provisions relating to the appointment of the
Integrity Commissioner are contained in Part 13 of the Bill.

Clause 15: Functions of the Integrity
Commissioner

This clause outlines the functions of the
Integrity Commissioner, which include investigating and reporting
on corruption issues, managing or overseeing the investigation of
corruption issues by law enforcement agencies, conducting public
inquiries at the request of the Minister and collecting and
analysing information on corruption issues to make recommendations
to the Minister. This clause also provides for the Integrity
Commissioner, on his or her own initiative or on request by the
Minister, to report to the Minister on necessary or desirable,
legislative or administrative, action in relation to corruption in
law enforcement agencies or the integrity of staff members of law
enforcement agencies. Other functions may be conferred on the
Integrity Commissioner by other provisions of the Bill or by
another Act.

In carrying out his or her functions, the
Integrity Commissioner must give priority to matters involving
serious or systemic corruption.

Clause 17: Integrity Commissioner may enter
into agreement with head of law enforcement agency

This clause provides for the Integrity
Commissioner to enter into an agreement with the head of a law
enforcement agency regarding issues such as what will constitute a
significant corruption issue in relation to staff members of the
particular agency, what will constitute satisfactory notification
to the Integrity Commissioner of a corruption issue, the procedure
for information and documents to be provided to the Integrity
Commissioner and the level of detail required in the final reports
at the conclusion of an investigation. Any variation or revocation
of such agreements must be in writing.

PART 4 - DEALING WITH CORRUPTION
ISSUES

Division 1-Referring Corruption
Issues to Integrity Commissioner

This Division deals with the ways in which a
corruption issue may be brought to the attention of the Integrity
Commissioner by another agency or person. It creates particular
obligations for heads of law enforcement agencies in relation to
corruption issues that relate their agency and for custodians of
prisoners who may wish to raise a corruption issue.

Clause 18: Referral of corruption issues by
Minister

The Minister may refer any allegation or
information raising a corruption issue to the Integrity
Commissioner.

The head of a law enforcement agency must
notify the Integrity Commissioner in writing of any allegation or
information raising a corruption issue. The notification must
include a description of the corruption issue and the allegation or
information and must indicate whether the issue is a significant
corruption issue for that agency. The notification must be in
accordance with any agreement entered into under clause 17. A
database may be created, and where the Integrity Commissioner
agrees, the head of a law enforcement agency can notify the
Integrity Commissioner of a corruption issue as required under this
Clause by entering the necessary information into the database.

The head of a law enforcement agency must
immediately cease investigation of a significant corruption issue
upon notification of the issue to the Integrity Commissioner. The
Integrity Commissioner must be provided with all relevant
information and documents within the agency’s possession and
control and the head of agency must take all reasonable steps to
prevent the loss, destruction or fabrication of evidence in
relation to the corruption issue. These steps reflect the
presumption that the Integrity Commissioner will investigate
significant corruption issues. The head of the agency may only
resume an investigation where the Integrity Commissioner refers the
matter to the head of the agency, decides to investigate the
corruption issue jointly with the agency or decides to take no
further action pursuant to clause 31.

Clause 21: Head of law enforcement agency
to pass on new information in relation to corruption issue already
referred

If the head of a law enforcement agency
notifies the Integrity Commissioner of a significant corruption
issue, the head of the agency must give the Integrity Commissioner
any relevant information or details of any relevant allegation that
the agency head subsequently becomes aware of. The head of the
agency is exempted from this requirement in cases where it is
reasonable to assume that the Integrity Commissioner is aware of
the additional information. The requirement is subject to clause
150 in relation to clause 149 certified information, but operates
despite any secrecy provisions.

Clause 22: Notification of non-significant
corruption issue

If the head of a law enforcement agency
notifies the Integrity Commissioner of a corruption issue but does
not indicate that it is a significant corruption issue, he or she
must ensure that the agency investigates the issue to completion.
This requirement is subject to any action taken by the Integrity
Commissioner to deal with the corruption issue. The agency head
does not need to investigate the corruption issue where the matter
involves a secondee who is already being investigated by his or her
home agency or by a State or Territory integrity agency. Other
circumstances where the agency head does not need to investigate
are where the allegation or information which raises the corruption
issue is frivolous or vexatious or where the corrupt conduct has
been, is or will be the subject of proceedings before a court.
Further, if a law enforcement agency is subject to another
Commonwealth law that makes provision for investigation by the
agency of complaints against, or misconduct by, agency staff, and
that law provides grounds for not investigating a matter that go
beyond the grounds provided by the Bill, the head of the agency may
decide, on the basis of such a ground, not to investigate a
corruption issue, but only if the Integrity Commissioner does not
consider that the issue should be investigated. This
provision allows for the fact that the grounds for not
investigating a corruption issue set out in subclause 22(2) do not
cover all the grounds that would otherwise be available, for
example, to the Commissioner of the AFP under proposed new
section 40TF of the AFP Act (see Law Enforcement (AFP
Professional Standards and Related Measures) Bill 2006), to decide
not to investigate an AFP conduct issue.

In any of these circumstances, the head of the
agency must advise the Integrity Commissioner that the agency will
not be investigating the corruption issue.

Clause 23: Referral of corruption issues by
other people

Any person (other than the Minister) may refer
an allegation or information that raises a corruption issue to the
Integrity Commissioner under this clause. A person may refer
allegations or information on behalf of another person, a
government agency or an association. A person can opt to refer
allegations or information anonymously. This is an important
feature of the Clause, because it is anticipated that people who
raise corruption issues with the Integrity Commissioner may work
with, or be acquainted with the persons about whom the information
or allegation relates.

Clause 24: Referral under section 23 by
person in custody

A person detained in custody may refer an
allegation or information that raises a corruption issue to the
Integrity Commissioner under Clause 23. The person must be provided
with facilities to prepare a written report of the allegation or
information and enclose the report in a sealed envelope. The
envelope must be sent to the Integrity Commissioner without undue
delay. Custodians are prohibited from opening or inspecting any
documents sent between the Integrity Commissioner and the person in
custody. Persons detained in custody have a similar right to make
complaints or raise issues under section 7 of the Ombudsman
Act 1976 (Cth) and section 13 of the Inspector-General of
Intelligence and Security Act 1986 (Cth).

Clause 25: Person making referral under
section 23 may elect to be kept informed

The Integrity Commissioner must ask a person
who refers an allegation or information that raises a corruption
issue to elect whether he or she wishes to be kept informed of the
action taken in relation to the matter. The function of the
Integrity Commissioner is not primarily to vindicate the rights of
private complainants but to pursue indications of corruption,
however they arise. It is likely that many referrals of allegations
or information will be in the nature of tip-offs or reports of
criminal conduct. Nonetheless, this clause provides a mechanism for
identifying those who may have a personal interest in a matter and
wish to be treated as complainants.

Division 2-How Integrity Commissioner
Deals With Corruption Issues

This Division deals the initial decision by
the Integrity Commissioner as to whether he or she should directly
investigate a corruption issue or the issue should be investigated
by a law enforcement agency, or whether it need not be investigated
at all. The Division covers both issues raised under Division 1 and
issues the Integrity Commissioners initiates. It provides for the
Integrity Commissioner to advise interested parties of the decision
and for the possibility of changing the decision at a later stage
if there is reason to do so.

Subdivision A-General

Clause 26: How Integrity Commissioner may
deal with corruption issues

This Clause sets out the ways in which the
Integrity Commissioner may address corruption issues. The Integrity
Commissioner may conduct an investigation, either alone or jointly
with another government agency or an integrity agency for a State
or Territory. The Integrity Commissioner may refer a corruption
issue to the AFP or other law enforcement agency for investigation,
and may manage or oversee an investigation being conducted by a law
enforcement agency. Subclause 29(6) provides the Integrity
Commissioner with further options where the corruption issue
relates to a secondee to a law enforcement agency.

Clause 27: Criteria for Deciding How to
Deal with a Corruption Issue

This clause provides a list of factors that
the Integrity Commissioner must consider before he or she decides
how to deal with a corruption issue, or whether to take no further
action in relation to a corruption issue. The Integrity
Commissioner must consider the importance of fully investigating a
corruption issue, the rights and obligations of the law enforcement
agency to investigate the issue, the extent to which the law
enforcement agency is able to co-operate in a joint investigation,
and the potential significance of the issue for the law enforcement
agency. The Integrity Commissioner must also ensure a balance
between his or her own responsibility to investigate corruption
issues, and the responsibility of law enforcement agencies to
manage their agencies.

Clause 28: Dealing with multiple corruption
issues

If a referral contains a number of corruption
issues, the Integrity Commissioner may deal with some or all of
them separately, or together. The Integrity Commissioner may deal
with multiple corruption issues together, even if they are not
raised in the same referral. If the Integrity Commissioner
addresses multiple issues together, he or she may produce a single
report of those issues. This clause provides the flexibility for
the Integrity Commissioner to deal with issues in the way that will
be most effective in the circumstances.

Clause 29: How Integrity Commissioner may
deal with corruption issues that relate to conduct of secondee from
Government Agency

Clauses 29 and 30 look at corruption issues
involving secondees to a law enforcement agency. If a corruption
issue relates to the conduct of a secondee from a government
agency, the Integrity Commissioner must notify the head of that
agency and any relevant integrity agency, and provide any
information requested about the corruption issue. The Integrity
Commissioner is not required to inform the government agency and
integrity agency, or provide information, if it is likely that
doing so could prejudice an investigation of the corruption issue,
nor is the Integrity Commissioner required to disclose information
that is subject to an Attorney-General’s certificate (see
clauses 149 and 152). If the Integrity Commissioner does not inform
the government agency or integrity agency, he or she must provide
the Minister with reasons. However, if the circumstances change so
that advising the head of the relevant agency of the decision on
how to deal with the information would no longer prejudice the
investigation, then the agency head’s right to be advised
would revive. The Integrity Commissioner may deal with the
corruption issue by arranging for the government agency or relevant
integrity agency to conduct an investigation. Alternatively, the
Integrity Commissioner may deal with the issue in any manner
authorised under clause 26. Before the Integrity Commissioner
reaches a decision, he or she must give due consideration to the
rights and obligations of the government agency and/or integrity
agency to investigate the corruption issue, the extent to which the
agencies are able to co-operate in a joint investigation and the
likely significance of the corruption issue for any agencies
involved. This list of considerations is not meant to limit the
operation of the considerations listed in clause 27.

Clause 30: Arrangements for Government
Agencies and Integrity Agencies to investigate corruption issues
relating to conduct of secondees

The Integrity Commissioner may arrange for
corruption issues involving the conduct of secondees to be
investigated by the government agency from which the seconde comes,
or a relevant State or Territory integrity agency. In this case,
the government agency or integrity agency may investigate the issue
to the full extent of its powers under Commonwealth, State or
Territory laws. Alternatively, the Integrity Commissioner may
conduct a joint investigation with a government agency or integrity
agency.

This Clause applies to significant corruption
issues raised by the head of a law enforcement agency under clause
19, and to corruption issues referred to the Integrity Commissioner
by the Minister under clause 18 or by another person under clause
23. The Integrity Commissioner must deal with these issues in one
of the ways referred to in subclauses 26(1) and 29(6), or decide to
take no further action. The Integrity Commissioner must deal with
the issues unless they are already being investigated (although the
Integrity Commissioner might choose to initiate his or her own
investigation in this case), the referral was frivolous or
vexatious, where the corruption issue is the subject of court
proceedings, or where the Integrity Commissioner determines that an
investigation is not warranted, having regard to all of the
circumstances. Providing the Integrity Commissioner with the
residual discretion to take no further action where none of the
stipulated grounds are applicable, implements part of the Senate
Committee’s recommendation 2.

If the head of a law enforcement agency
notifies the Integrity Commissioner of a corruption issue which is
not significant under clause 19, the Integrity Commissioner may
address the issue in one of the ways specified in subclauses 26(1)
and 29(6). The Integrity Commissioner may request further
information from the law enforcement agency, to help decide how
best to deal with the issue.

Subdivision C-Advising Particular
People of Decision About How to Deal With Corruption Issue

Clause 33: Minister

Clauses 33 and 34 ensure that the Integrity
Commissioner notifies people who refer an allegation or information
that raises a corruption issue of decisions made with respect to
that issue. Under this Clause, if the Minister refers a corruption
issue to the Integrity Commissioner under clause 18, the Integrity
Commissioner must advise the Minister in writing of his or her
decision about how to deal with the issue under clause 31, and the
result of any reconsideration of how to deal with the corruption
issue under clause 42.

Clause 34: Person who refers corruption
issue

If a person refers a corruption issue to the
Integrity Commissioner under clause 23 and elects to be kept
informed of action taken in relation to the issue under clause 25,
the Integrity Commissioner must advise the person in writing of his
or her decision about how to deal with the issue under clause 31,
and the result of any reconsideration of how to deal with the
corruption issue under clause 42. The Integrity Commissioner does
not have to notify the person if he or she is satisfied that doing
so is likely to prejudice an investigation of a corruption issue.
However, if circumstances change so that notifying the person would
no longer prejudice the investigation, then the person’s
right to be advised is revived.

Clause 35: Head of law enforcement
agency

If the Minister or another person refers a
corruption issue which relates to a law enforcement agency, the
Integrity Commissioner must advise the head of that agency in
writing of his or her decision about how to deal with the issue
under clause 31, and the result of any reconsideration of how to
deal with the corruption issue under clause 42. The Integrity
Commissioner does not have to notify the head of the law
enforcement agency if he or she is satisfied that doing so is
likely to prejudice an investigation of a corruption issue. If the
Integrity Commissioner decides to withhold notification, he or she
must provide the Minister with reasons. However, if circumstances
change so that notifying the head of the law enforcement agency
would no longer prejudice the investigation, then the
person’s right to be advised is revived.

Clause 36: Head of home agency and
integrity agency

This Clause applies if the Minister or another
person refers to the Integrity Commissioner a corruption issue that
relates to a person who is or has been a secondee to a law
enforcement agency, and who is an employee of a government agency.
In this case, the Integrity Commissioner must advise the head of
the government agency and any relevant integrity agency in writing
of his or her decision about how to deal with the issue under
clause 31, and the result of any reconsideration of how to deal
with the corruption issue under clause 42. The Integrity
Commissioner does not have to notify the head of the government
agency or integrity agency if he or she is satisfied that doing so
is likely to prejudice an investigation of a corruption issue. If
the Integrity Commissioner decides to withhold notification, he or
she must provide the Minister with reasons. However, if
circumstances change so that notifying the government agency or
integrity agency would no longer prejudice the investigation, then
the person’s right to be advised is revived.

Clause 37: Staff member to whom corruption
issue relates

Where the Minister, the head of a law
enforcement agency or another person notifies the Integrity
Commissioner of a corruption issue which relates to a person who
is, or has been a staff member of a law enforcement agency, the
Integrity Commissioner may advise him or her in writing of his or
her decision about how to deal with the issue under Clause 31 or
32, and the result of any reconsideration of how to deal with the
corruption issue under Clause 42. There is no mandatory obligation
for the Integrity Commissioner to advise the staff member under
this Clause, because such an obligation might preclude an effective
investigation of the issue in some cases.

Clause 38: Integrity Commissioner may Deal
with Corruption Issues on Own Initiative

If the Integrity Commissioner becomes aware of
an allegation or information that raises a corruption issue, other
than an allegation or information that is referred under Division 1
of Part 4, the Integrity Commissioner may deal with the issue in
one of the ways referred to in subclause 26(1) or subclause 29(6),
on his or her own initiative. This includes an allegation or
information that the Integrity Commissioner becomes aware of in the
course of investigating or inquiring into another corruption issue.
If the Integrity Commissioner decides to deal with the corruption
issue in one of the ways referred to in clause 26 or 29, the
Integrity Commissioner may direct the head of the relevant law
enforcement agency that the agency is not to investigate the
corruption issue.

Clause 39: Advising law enforcement agency
head of decision to deal with corruption issue on own
initiative

If the Integrity Commissioner decides to deal
with a corruption issue under Clause 38 on his or her own
initiative, he or she must advise the head of the relevant law
enforcement agency of his or her decision to deal with the matter
in that way, or any decision made following reconsideration under
Clause 42. The agency head must be advised in writing and as soon
as reasonably practicable after the decision is made. However, the
Integrity Commissioner need not advise the head of the agency if
doing so is likely to prejudice an investigation or any action
taken as a result. In these circumstances, the Integrity
Commissioner must inform the Minister and give reasons for not
advising the agency head of the decision. If the circumstances
change so that advising the head of the relevant agency of the
decision on how to deal with the information would no longer
prejudice the investigation, then the agency head’s right to
be advised is revived.

Clause 40: Advising head of government
agency and integrity agency of decision to deal with corruption
issue on own initiative

Clause 40 applies when the Integrity
Commissioner decides to deal with a corruption issue under clause
38 on his or her own initiative and the corruption issue relates to
the conduct of a person who is or has been a secondee to a law
enforcement agency. The Integrity Commissioner must advise the head
of the home agency of his or her decision to deal with the matter
in that way, or any decision made following reconsideration under
clause 42. The Integrity Commissioner must advise the head of any
integrity agency for the State or Territory in the same way. The
advice must be given in writing and as soon as reasonably
practicable after the decision is made. However, the Integrity
Commissioner need not advise the head of the home agency or the
State or Territory integrity agency if doing so is likely to
prejudice an investigation or any action taken as a result. In
these circumstances, the Integrity Commissioner must inform the
Minister and give reasons for not advising the agency head of the
decision. If the circumstances change so that advising the head of
the relevant agency of the decision on how to deal with the
information would no longer prejudice the investigation, then the
agency head’s right to be advised is revived.

Clause 41: Advising staff member of
decision to deal with corruption issue on own initiative

Clause 41 applies if the Integrity
Commissioner decides to deal with a corruption issue on his or her
own initiative and the corruption issue relates to a person who is,
or has been a staff member of a law enforcement agency. The
Integrity Commissioner may advise the staff member of the decision
to deal with the corruption issue in that way, or any decision made
following reconsideration under clause 42. There is no mandatory
obligation for the Integrity Commissioner to advise the staff
member under this clause, because such an obligation might preclude
an effective investigation of the issue in some cases.

Subdivision E-Reconsidering How to
Deal with Corruption Issue

Clause 42: Reconsidering how to Deal with
Corruption Issue

The Integrity Commissioner may, at any time,
reconsider how a corruption issue is to be dealt with. On that
reconsideration, the Integrity Commissioner may decide to adopt a
new or an alternative method of investigation under subclause 26(1)
or subclause 29(6). If a new or alternative method of investigation
is adopted, the Integrity Commissioner may direct the head of the
relevant law enforcement agency that the agency is not to
investigate the corruption issue. If the corruption issue is
already being, or will be, investigated by a law enforcement
agency, a government agency or a State or Territory integrity
agency, the Integrity Commissioner may decide to take no further
action in relation to that issue, although an investigation by the
Integrity Commissioner is not precluded in these circumstances. The
Integrity Commissioner may also take no further action if the
allegation or information which raises the corruption issue is
frivolous or vexatious, where the corrupt conduct has been, is or
will be the subject of court proceedings, or where the Integrity
Commissioner determines that an investigation is not warranted,
having regard to all of the circumstances. Providing the Integrity
Commissioner with the residual discretion to take no further action
where none of the stipulated grounds are applicable, implements
part of the Senate Committee’s recommendation 2.

PART 5 - INFORMATION SHARING WHEN DECISION
MADE ABOUT HOW TO DEAL WITH CORRUPTION ISSUE

This Part provides mechanisms to ensure that
the agency which is to investigate a corruption issue has access at
the outset to all the available information.

Division 1- Giving Information to Head of
Agency Conducting Investigation

Clause 43 sets out when Division 1 applies.
First, the Division applies where the Integrity Commissioner refers
a corruption issue to a law enforcement agency or the AFP for
investigation or a law enforcement agency has already commenced
investigating a corruption issue before it is referred to the
Integrity Commissioner. Secondly, the Division applies where the
corruption issue relates to the conduct of a secondee of a law
enforcement agency who is an employee of a Commonwealth government
agency and the Integrity Commissioner arranges for the Commonwealth
government agency to investigate the corruption issue. Finally, the
Division applies where the corruption issue relates to the conduct
of a secondee of a law enforcement agency and the secondee is an
employee of a State or Territory government agency and the
Integrity Commissioner arranges for the State or Territory
government agency or integrity agency to investigate.

Clause 44: Integrity Commissioner to give
Information or Documents to Agency Head

Clause 44 obliges the Integrity Commissioner
to provide all information relevant to the corruption issue being
investigated by an agency to the head of the agency investigating
the corruption issue if the head of the agency does not already
have the information. The Integrity Commissioner does not have to
provide the information where it is certified under section
149.

Division 2-Information to be given by
Law Enforcement Agency that has already Commenced
Investigation

This Division applies where the Integrity
Commissioner decides to deal with a corruption issue that a law
enforcement agency started, or continued to investigate, prior to
the Integrity Commissioner’s decision as to how to deal with
the matter.

Clause 46: Integrity Commissioner may
Direct Agency Head to Give Information or Documents that Relate to
Corruption Issue

The Integrity Commissioner may, in writing,
direct the head of an agency investigating a corruption issue to
provide all information and/or documents in relation to the
corruption issue that are in the possession or control of the head
of the agency. The head of agency must comply unless the
information is certified information under clause 149 and the
disclosure is not permitted (subclause 150(1)) or would breach a
condition of the certificate (clause 151).

PART 6 - INVESTIGATIONS BY INTEGRITY
COMMISSIONER

This Part sets out some basic principles
governing the conduct of investigations of corruption issues by the
Integrity Commissioner and sets out the powers and duties of the
Integrity Commissioner in relation to reporting the progress and
outcomes of such investigations and taking any necessary follow-up
action.

Division 1- Investigation

Clause 47: Application of Division

The Division describes the manner in which
investigations by the Integrity Commissioner should be undertaken,
whether solely, or jointly with other agencies.

Clause 48 gives the Integrity Commissioner
discretion to conduct the investigation in such manner as he or she
thinks fit. Part 9 of the Bill prescribes the powers available to
the Integrity Commissioner for the purposes of investigating or
conducting an inquiry into corrupt conduct and corruption
issues.

This clause operates where the Integrity
Commissioner has informed the head of a law enforcement agency
(under clause 35) or the head of a government agency (under clause
36) that the Integrity Commissioner has decided to investigate a
corruption issue.

The Integrity Commissioner is required to
regularly consult with the head of the relevant law enforcement
agency, with a view to minimising the risk of prejudice to the
agency’s operations. The Integrity Commissioner may also
consult with another relevant government agency (a secondee’s
home agency or the relevant integrity agency) where there is a risk
of prejudice to its operations.

Clause 50: Information Sharing for Joint
Investigation

The Integrity Commissioner may provide
information and documents within the Integrity Commissioner’s
possession and control to the head of an agency with which the
Integrity Commissioner is jointly conducting an investigation.
However, the Commissioner must not disclose Clause 149 certified
information contrary to the terms of the certificate (Clause
152).

Clause 51: Opportunity to be Heard

The Integrity Commissioner must not disclose
any opinions or findings that are critical of a government agency
or person in a report, unless the head of the agency or the person
has been given an opportunity to appear, or have a representative
appear before the Integrity Commissioner to make submissions in
relation to the subject matter.

Where the opinion or finding is critical of a
person, the Commissioner must provide the person with a statement
setting out the opinion or finding and give the person a reasonable
opportunity to be heard or make submissions. Where the opinion or
finding is critical of an agency, the Integrity Commissioner must
provide the head of the agency with the same opportunities. The
clause also provides for submissions to be made by a representative
of the head of agency or person. However, the Commissioner does not
have to give a person the opportunity to be heard where the
Commissioner is satisfied that a person may have committed a
criminal offence, contravened a civil penalty provision or engaged
in conduct which could be the subject of disciplinary proceedings
or termination of employment/ appointment, and that an
investigation or any related action would be compromised by giving
the person the opportunity to make submissions.

The Integrity Commissioner must take
reasonable steps to inform a referring Minister or head of agency
as to the progress of an investigation. The Integrity Commissioner
must also take reasonable steps to inform any other person who
refers a matter to the Integrity Commission about the progress of
the investigation if the person has elected to be kept informed
under clause 25.

Clause 53: Integrity Commissioner to Keep
Home Agency and Integrity Agency Informed of Progress of
Investigation

Clause 53 obliges the Integrity Commissioner
to take reasonable steps to keep the head of the home agency of a
secondee to a law enforcement agency informed about the progress of
an investigation if the Integrity Commissioner has informed the
head of the home agency under subclause 29(2). The Integrity
Commissioner must keep the head of a State or Territory integrity
agency similarly informed if the secondee is from the police force
of a State or Territory and the Integrity Commissioner has informed
the State or Territory integrity agency under subclause 29(2).

Subdivision B- Reporting at the End of
Investigation

Clause 54: Report on Investigation

The Integrity Commissioner must complete a
report after an investigation of a corruption issue that relates to
a law enforcement agency. The report must set out the Integrity
Commissioner’s findings, evidence, action taken or to be
taken, recommendations and reasons. The Integrity Commissioner may
recommend disciplinary action, action to rectify or mitigate the
effects of the conduct or adopting measures to remedy deficiencies
in policy or practice. If the Integrity Commissioner has conducted
public hearing into a corruption issue, the Integrity Commissioner
must not include clause 149 certified information in the report and
may also exclude sensitive information (because the report must be
tabled under section 203). However, that information must be
included in a supplementary report.

The Integrity Commissioner must give a copy of
the report and any supplementary report to the Minister. In
addition, the Integrity Commissioner must provide a copy of the
report to the head of the agency to which the investigation relates
and may also provide any supplementary report or parts thereof in
accordance with a certificate issued under Clause 149.

Clause 56: Comments by Head of
Agency

The head of the agency may give the Integrity
Commissioner comments on a report or supplementary report.

Clause 57: Follow-up Action on
Report

The Integrity Commissioner may request details
of any action that the head of the agency proposes to take in
relation to the Integrity Commissioner’s recommendations. The
head of the agency must comply with the request. If the Integrity
Commissioner is not satisfied with the response, he or she may
refer the matter to the Minister and to Parliament.

Clause 58: Advising Person who Referred
Corruption Issue of Outcome of the Investigation

The Integrity Commissioner must also take
reasonable steps to inform a person who refers a matter to the
Integrity Commission, or a nominated person, about the outcomes of
the investigation if the person has elected to be kept informed
under clause 25. However, if the Integrity Commissioner is
satisfied that advising the person is likely to prejudice an
investigation or any related action, the Integrity Commissioner can
withhold advising the person until such time as the circumstances
change to remove such prejudice.

Clause 59: Advising Person Whose Conduct is
Investigated of Outcome of the Investigation

The Integrity Commissioner may advise a person
who is, or has been, a staff member of a law enforcement agency
about the outcome of the investigation where the corruption issue
relates to that person. The Integrity Commissioner may provide the
person with a copy of the whole or part of the report. However, the
Integrity must not disclose to the person information that is the
subject of a certificate issued under section 149, if to do so
would contravene the terms of the certificate, and may withhold
sensitive information if it is desirable to do so in the
circumstances.

PART 7 - Investigations by Other
Commonwealth Agencies

Paragraph 15(b) of Part 3 provides that the
Integrity Commissioner may refer a corruption issue to a law
enforcement agency for investigation. Paragraph 15(c) of Part 3
provides that the Integrity Commissioner may manage, oversee or
review an investigation being conducted by a law enforcement
agency. This Part sets out the process and requirements in cases
where the Integrity Commissioner either refers an investigation to
another agency or is managing or overseeing an investigation by
another agency. It also sets out the reporting and notification
requirements.

Division 1- Nominated Contact for
Investigations by Law Enforcement Agencies

Clause 60: Nominating Contact for
Investigation

If the Integrity Commissioner refers a
corruption issue to a law enforcement agency or manages or oversees
an investigation by a law enforcement agency, the head of the
agency will be the contact person for the Integrity Commissioner,
unless he or she nominates another person in writing. Law
enforcement agency is defined in Clause 5 of Part 2.

Division 2- Managing or Overseeing
Investigations by Law Enforcement Agencies

Clause 61: Managing an
Investigation

This clause sets out how the Integrity
Commissioner manages a law enforcement agency’s
investigation of a corruption issue. The Integrity Commissioner
manages an investigation of a corruption issue by providing the
agency’s nominated contact pursuant to Clause 60,
detailed guidance on the planning and carrying out of the
investigation. The head of the agency must ensure that staff
members co-operate with the Integrity Commissioner and adhere to
any instructions provided.

Clause 62: Overseeing an
Investigation

This clause sets out how the Integrity
Commissioner oversees a law enforcement agency’s
investigation of a corruption issue. The Integrity Commissioner
oversees an investigation of a corruption issue by providing the
agency’s nominated contact general guidance on the
planning and carrying out of the investigation. The head of the
agency must ensure that the agency follows the Integrity
Commissioner’s general guidance in regards to the planning
and carrying out of the investigation.

Division 3- Reporting

Subdivision A- Reporting by Law Enforcement
Agencies During Investigations

The Integrity Commissioner may request a
progress report from the law enforcement agency conducting an
investigation. This request must be in writing, specifying a date
at least seven days later in which the report is due to the
Integrity Commissioner and may specify matters which the report is
to address. The agency must comply with the request.

The Integrity Commissioner may request
periodic progress reports from the law enforcement agency
conducting an investigation. This request must be in writing,
specifying the frequency with which the reports are to be given to
the Integrity Commissioner and may specify matters which the
reports are to address. The agency must comply with the
request.

Clause 65: Head of Law Enforcement Agency
to Keep Person Who Referred Corruption Issue Informed of Progress
of Investigation

If the Minister refers a corruption issue to
the Integrity Commissioner and the Integrity Commissioner refers
the matter to a law enforcement agency for investigation, the head
of that law enforcement agency must keep the Minister informed as
to the progress of the investigation. Where a person refers
information or allegations of corruption issues to the Integrity
Commissioner under Clause 23 and elects to be kept informed under
clause 25, and the Integrity Commissioner refers that corruption
issue to a law enforcement agency for investigation, the head of
the agency must keep the person informed as to the progress of the
investigation.

Subdivision B- Reporting by Commonwealth
Government Agencies at End of Investigation

Clause 66: Final Report on
Investigation

At the conclusion of an investigation, the
head of the agency must prepare a report for the Integrity
Commissioner including findings, evidence and any action taken, or
proposed to be taken in relation to the investigation. This
obligation applies to all Commonwealth agencies (including, for
example, the home agency of a secondee), not just law enforcement
agencies. Where the report is prepared by the AFP in relation to
another law enforcement agency the report may make recommendations
to the head of the other agency. The report must be given to the
head of the other agency at the same time as it is given to the
Integrity Commissioner.

Clause 67: Integrity Commissioner may
Comment on Final Report

Upon receipt of the final report provided
pursuant to clause 66, the Integrity Commissioner may make comments
and/or recommendations in writing to the head of agency concerned,
in relation to any matter arising from the report or the
investigation. Depending on his or her satisfaction with the
report, the Integrity Commissioner may, under clause 42, reconsider
how the corruption issue should be dealt with. The Integrity
Commissioner may request details of actions that the agency plans
to take in response to the Integrity Commissioner’s
recommendations. If the Integrity Commissioner is not satisfied
with the response of the agency the Integrity Commissioner may
refer the matter to the Minister responsible for the agency. The
Integrity Commissioner may also provide a copy of the relevant
information to Parliament and may discuss the matter with the
agency head for the purpose of resolving the matter. Certain
information must be excluded from the material given to Parliament.
This is certified information under clause 149. The Integrity
Commissioner may also exclude other information from presentation
to Parliament if he or she is satisfied that it is sensitive
information that it is desirable to exclude in the
circumstances.

Clause 68: Advising Person who Referred
Corruption Issue of Outcome of the Investigation

If the person who refers a corruption issue
elects under clause 25 to be kept informed, or nominates a person
to be kept informed, of any action taken in relation to a referred
corruption issue, and the Integrity Commissioner refers the
corruption issue to another agency for investigation, the agency
must advise the person, or the relevant nominated person, of the
outcome of the investigation and may provide a copy of whole or
part of the report prepared by the Integrity Commissioner under
clause 54. However, if the head of the agency is satisfied that
advising the person or relevant nominated person is likely to
prejudice an investigation or any related action, the head of the
agency can withhold advising until such time as the circumstances
change to remove such prejudice. This clause ensures that those who
are entitled to be informed, are notified of the outcome of the
investigation, unless the prejudicial nature of advising him or her
outweighs that entitlement.

Clause 69: Advising Person Whose Conduct is
Investigated of Outcome of the Investigation

If a Commonwealth government agency
investigates a corruption issue that relates to a person who is or
has been a staff member of a law enforcement agency, the head of
that agency may advise the staff member of the outcome and
may provide them with a copy of whole or part of the final report
prepared by the investigating agency under clause 66.

In circumstances where a government agency is
investigating a corruption issue, the Integrity Commissioner must
provide the head of agency with any relevant information he or she
becomes aware of, subject to clause 152 in respect of section 149
certificated information.

The Minister may request the Integrity
Commissioner to conduct a public inquiry into a corruption issue,
corruption generally in law enforcement agencies and/or the
integrity of staff members of law enforcement agencies. For the
definition of “corruption issue”, see clause 7 of the
Bill. For the definition of “law enforcement agency”,
see clause 5 of the Bill; For the definition of “corruption
issue that relates to a law enforcement agency”, see

clause 9 of the Bill. The conduct of public
inquiries is a function of the Integrity Commissioner under clause
15(d), and the powers available to the Integrity Commissioner for
the purposes of a public inquiry are set out in Part 9 of the
Bill.

Clause 72: Publicising Inquiry

This clause imposes a duty on the Integrity
Commissioner to invite submissions on issues that are the subject
of the public inquiry.

Division 2- Reporting

Clause 73: Report on Public Inquiry

At the end of an inquiry the Integrity
Commissioner is required to submit a report to the Minister. The
report must include the findings, evidence, action taken or
proposed to be taken and recommendations. The report must exclude
“sensitive information” that it is desirable in the
circumstances to exclude, “section 149 certified
information” (see Clause 5 of the Bill for their
definitions), and other information. When deciding whether to
exclude sensitive information, the Integrity Commissioner must take
into account the public interest that would be served by including
the information in the report, and the potential prejudicial
consequences that might result from including the information in
the report. If information has been excluded from the report, a
supplementary report must be prepared by the Integrity Commissioner
with the excluded information and reasons for the exclusion.

Clause 74: Giving Report to
Minister

At the conclusion of the inquiry, the
Integrity Commissioner must provide the Minister with a copy of the
report on the public inquiry prepared under clause 73 and any
supplementary report. Under clause 203 the Minister is required to
table the report in Parliament, however there is no requirement for
the Minister to table a supplementary report.

PART 9- INTEGRITY COMMISSIONER’S
POWERS IN CONDUCTING INVESTIGATIONS AND PUBLIC INQUIRIES

Division 1- Requiring people to give
information and produce documents

Subdivision A-Requests by Integrity
Commissioner

Clause 75: Request to staff member of law
enforcement agency

Under clause 75, the Integrity Commissioner
will be able to make requests to staff members of law enforcement
agencies requiring them to provide information or produce documents
or things for the purposes of investigating a corruption issue.
Where the Integrity Commissioner requests information, he or she
may require that the information be provided in writing. Clause 10
of the Bill sets out the classes of persons who are considered to
be staff members of law enforcement agencies for the purposes of
the Bill. All requests made under clause 75 must be made in
writing, signed by the Integrity Commissioner and served on the
staff member of the law enforcement agency (subclause 75(2)). A
staff member of a law enforcement agency that has a request made to
him or her under clause 75 must comply with that request as soon as
reasonably practicable (subclause 75(4)). A staff member of a law
enforcement agency will commit an offence if he or she fails to
comply with a request made to him or her under clause 75 as soon as
reasonably practicable. The offence is set out in clause 78 of the
Bill. However, a staff member must not comply with the request if
to do so would involve the disclosure of documents or information
that are the subject of a certificate issued by the
Attorney-General under clause 149 in contravention of the terms of
the certificate. To ensure that investigations into corruption
issues are conducted efficiently, effectively and fairly, it is
necessary to provide the Integrity Commissioner with the power to
compel the production of documents and information relevant to an
investigation. The type of documents or information that the
Integrity Commissioner will be able to request under clause 75 is
limited to those that are necessary for the purposes of
investigating a corruption issue. Corruption issue is a term
defined in clause 7 of the Bill.

Clause 76: Request to person other than
staff member of law enforcement agency

Under clause 76, the Integrity Commissioner
will be able to make requests to any person, other than a staff
member of a law enforcement agency, requiring them to provide
information or produce documents or things for the purposes of
investigating a corruption issue. The Integrity Commissioner can
request that a staff member of a law enforcement agency provide
documents or information or things under clause 75. Clause 76
applies only to persons who are not staff members of law
enforcement agencies. Clause 10 of the Bill sets out the classes of
persons who are considered to be staff members of law enforcement
agencies for the purposes of the Bill. All requests made under
clause 76 must be made in writing, signed by the Integrity
Commissioner and served on the person. They must also specify the
time that the person has to comply with the request. The period for
compliance must be at least 14 days from the day that the request
is served on the person (subclause 76(2)). A person served with a
request under clause 76 must comply with the request within the
time for compliance specified in the request (subclause76(4)). A
staff member of a law enforcement agency will commit an offence if
he or she fails to comply with a request made to him or her under
clause 76 within the time specified in the request. The offence is
set out in clause 78 of the Bill. However, a staff member must not
comply with the request if to do so would involve the disclosure of
documents or information that are the subject of a certificate
issued by the Attorney-General under clause 149 in contravention of
the terms of the certificate. To ensure that investigations into
corruption issues are conducted efficiently, effectively and
fairly, it is necessary to provide the Integrity Commissioner with
the power to compel the production of documents and information
relevant to an investigation. The type of documents or information
that the Integrity Commissioner will be able to request under
clause 76 is limited to those that are necessary for the purposes
of investigating a corruption issue. Corruption issue is a term
defined in clause 7 of the Bill.

Clause 77: Integrity Commissioner may
retain documents and things

Clause 77 allows the Integrity Commissioner to
retain documents or things produced to him or her pursuant to a
request made under clause 75 or 76. Under clause 77, the Integrity
Commissioner will be able to:

â¢ Take possession of a document or
thing,

â¢ Make copies of a document or thing,

â¢ Take extracts from a document, and

â¢ Retain possession of a document or
thing for as long as necessary for the purposes of the
investigation for which the document or thing was requested.

Documents or things obtained pursuant to a
request made under clause 75 or 76 will not be able to be retained
indefinitely. Rather, the period of time that the Integrity
Commissioner can retain documents or things under clause 77 is
limited to the period for which those documents or things are
necessary for the purposes of the investigation for which they were
requested. At all times while the Integrity Commissioner retains a
document or thing obtained pursuant to a request made under clause
75 or 76, the Integrity Commissioner must allow persons who would
otherwise be entitled to inspect or view the document or thing to
inspect or view the document or thing at the times that the person
would ordinarily be able to do so (subclause 76(2)). Providing a
power of inspection means that the person is not completely
deprived of the document or thing. Clause 77 is necessary to enable
the Integrity Commissioner to access documents and information
relevant to an investigation into a corruption issue. It also
preserves the chain of evidence, for example, should an
investigation eventually lead to action being taken by
prosecutorial authorities or regulators. This clause is similar to
sections 2 and 6F of the Royal Commissions Act, section 18 of the
Inspector-General of Intelligence and Security Act, sections 28 and
29 of the ACC Act, sections 9 and 13 of the Ombudsman Act and
sections 18 and 19 of the Inspector-General of Taxation Act.

Subdivision B-Offence and related
provisions

Clause 78: Failure to comply with Integrity
Commissioner’s request

Offence by a staff member of a law
enforcement agency

A staff member of a law enforcement agency
commits an offence if he or she fails to comply with a request made
to him or her under clause 75 as soon as reasonably practicable.
The request must have been made in writing and served on the staff
member. Clause 10 of the Bill sets out the classes of persons who
are considered to be staff members of law enforcement agencies for
the purposes of the Bill. To be held criminally responsible for
this offence, the staff member must also have been capable of
complying with the request. A staff member will not commit the
offence if subclause 150(2) applies.

Subclause 150(2) of the Bill prohibits the
disclosure of documents or information that is the subject of a
certificate issued by the Attorney-General under clause 149 of the
Bill. The Attorney-General can only issue a certificate under
clause 149 if disclosure of the document or information would be
contrary to the public interest and one of the grounds in subclause
149(2) is satisfied. In summary, the grounds for non-disclosure set
out in subclause 149(2) are where disclosure would:

â¢ Prejudice national security, defence of
international relations of the Commonwealth,

â¢ Prejudice Commonwealth/State
relations,

â¢ Involve the disclosure of a Cabinet
decision or Cabinet deliberations,

â¢ Prejudice an investigation into whether
a criminal offence has been committed or a civil penalty provision
has been contravened,

â¢ Prejudice a fair trial,

â¢ Reveal a confidential source of
information relevant to the enforcement of a criminal offence or a
civil penalty provision,

â¢ Prejudice the effectiveness of
operational methods, or investigative practices or techniques,

â¢ Prejudice the proper performance of ACC
functions, or

â¢ Endanger a person’s life or
physical safety.

A staff member of a law enforcement agency is
not excused from complying with a request made under clause 75 on
grounds that production of the information or documents requested
could incriminate them. The privilege against self-incrimination is
abrogated in clause 80 of the Bill. The maximum penalty for the
offence is 2 years imprisonment.

Offence by a person other than a staff
member of a law enforcement agency

A person, other than a staff member of a law
enforcement agency, commits an offence if he or she fails to comply
with a request made to him or her under clause 76 within the time
period specified in the request. Clause 10 of the Bill sets out the
classes of persons who are considered to be staff members of law
enforcement agencies for the purposes of the Bill. The request must
have been made in writing and served on the person. The request
must have also specified the time for compliance, and this period
must have been at least 14 days from the day that the request was
served on the person. To be held criminally responsible for this
offence, the person must also have been capable of complying with
the request. A staff member will not commit the offence if
subclause 150(2) applies. Subclause 150(2) of the Bill prohibits
the disclosure of documents or information that is the subject of a
certificate issued by the Attorney-General under clause 149 of the
Bill. The Attorney-General can only issue a certificate under
clause 149 if disclosure of the document or information would be
contrary to the public interest and one of the grounds in subclause
149(2) is satisfied. In summary, the grounds for non-disclosure set
out in subclause 149(2) are where disclosure would:

â¢ Prejudice national security, defence of
international relations of the Commonwealth,

â¢ Prejudice Commonwealth/State
relations,

â¢ Involve the disclosure of a Cabinet
decision or Cabinet deliberations,

â¢ Prejudice an investigation into whether
a criminal offence has been committed or a civil penalty provision
has been contravened,

â¢ Prejudice a fair trial,

â¢ Reveal a confidential source of
information relevant to the enforcement of a criminal offence or a
civil penalty provision,

â¢ Prejudice the effectiveness of
operational methods, or investigative practices or techniques,

â¢ Prejudice the proper performance of ACC
functions, or

â¢ Endanger a person’s life or
physical safety.

A person is not excused from complying with a
request made under clause 75 on grounds that production of the
information or documents requested could incriminate them. The
privilege against self-incrimination is abrogated in clause 80 of
the Bill. The maximum penalty for the offence is 2 years
imprisonment.

If the Integrity Commissioner makes a request
to a legal practitioner under clause 76, clause 79 provides that
the legal practitioner can refuse to provide the documents or
information or things requested if doing so would disclose
privileged communications made by, or to, the legal practitioner in
his or her capacity as a legal practitioner. This means that where
disclosure by a legal practitioner would disclose privileged
communications, the legal practitioner cannot be held criminally
responsible for the offence in clause 78 for failing to comply with
a request made under clause 76. That is, if clause 79 applies it
will operate as an exception to the offence in clause 78. The
excuse in clause 79 (that is, where production of information,
documents or things would disclose privileged communications) will
not be available to the legal practitioner if the person to whom or
by whom the privileged communication was made agrees to the legal
practitioner providing the information or document or thing. Where
the excuse in clause 79 is available (that is, where the privilege
has not been waived by the person to whom or by whom the
communication was made) and the legal practitioner refuses to give
information or produce documents or things on that basis, that is,
on grounds that doing so would disclose privileged communications,
the Integrity Commissioner may request the legal practitioner to
provide the name and address of the person by, or to, whom the
communication was made (subclause 79(4)). A legal practitioner must
comply with such a request from the Integrity Commissioner. Clause
79 does not affect the law relating to legal professional
privilege.

Clause 80: Self-incrimination etc.

The privilege against self-incrimination is
abrogated in clause 80 of the Bill. This means that a staff member
of a law enforcement agency, or a person, requested to provide
information, documents or things under clause 75 or 76 cannot
refuse to produce the document, information or things on grounds
that doing so could incriminate him or her.

The privilege is not completely abrogated;
rather, a use immunity is provided (see subclauses 80(2) and (4)).
However the use immunity is not available in five specified
circumstances (see subclause 80(4). The use immunity operates where
a staff member of a law enforcement agency, or a person other than
a staff member of a law enforcement agency, prior to producing
information or documents or things pursuant to a request under
clause 75 or 76 (respectively) claims that doing so may tend to
incriminate or expose them to a penalty, the information or
documents or things will not be admissible as evidence against the
person in criminal proceedings or any other proceedings for the
imposition or recovery of a penalty. There are five circumstances
where this use immunity will not be available. The use immunity
will not be available, meaning that the information or documents or
things will be able to be used in evidence, in:

(a) Proceedings for
an offence against clause 78 of the Bill - failure to provide
information, documents or things requested by the Integrity
Commissioner under clause 75 or 76 of the Bill,

(b) Confiscation
proceedings - this term is defined in clause 5 of the Bill to
mean proceedings under the Proceeds of Crime Act 1987 or the
Proceeds of Crime Act 2002 , or a corresponding law within
the meaning of either of those Acts, but does not include a
criminal prosecution for an offence under either of those Acts or a
corresponding law,

(c) Proceedings for
an offence against section 137.1 or 137.2 of the Criminal Code
- being offences for providing false or misleading
statements or documents,

(d) Proceedings for
an offence against section 149.1 of the Criminal Code
- being an offence for obstructing a Commonwealth public
official, or

(e) Disciplinary
proceedings against the person if the person is a staff member of a
law enforcement agency - ‘disciplinary
proceedings’ is a term defined in clause 5 of the Bill and
extends to proceedings taken under a law of the Commonwealth, a
State or a Territory. This exclusion will only apply if the
disciplinary proceedings are against a staff member of a law
enforcement agency. That is, the use immunity will not be abrogated
in respect of disciplinary proceedings that could be taken in
respect of another profession (for example, the use immunity will
exist for information, documents or things produced by a doctor so
that they could not be used in disciplinary proceedings that might
be taken by an medical professional association against that
doctor, for example, for medical negligence).

Immunity on public interest grounds

A person is not excused from answering a
question or providing information or documents or things when
requested under clause 75 or 76, on the grounds that answering the
question, or producing the information or documents or things would
disclose:

â¢ Legal advice
given to a Minister or Commonwealth Government Agency, or

â¢ A
communication between another officer of a Commonwealth government
agency and another person, if that disclosure is protected by legal
professional privilege.

Commonwealth government agency is a term
defined in clause 5 of the Bill. Similarly, a person is not excused
from answering a question or providing information or documents or
things when requested under clause 75 or 76, on the grounds that
answering the question, or producing the information or documents
or things would breach a secrecy provision. There is an exception
however if disclosure would breach a taxation secrecy provision or
a law enforcement secrecy provision. This means that if answering
the question or disclosing the information or document or thing
would breach a taxation secrecy provision or a law enforcement
secrecy provision, the person will not be required to answer the
question or disclose the information or document or thing and hence
could not be held criminally responsible under clause 78 for
failing to comply with a request made under clause 75 or 76.
‘Taxation secrecy provision’ and ‘law enforcement
secrecy provision’ are terms defined in clause 5 of the
Bill.

If a person answers a question or provides
documents or information or things in response to a request made of
him or her under clause 75 or 76, and that answer or disclosure
constitutes a breach of a secrecy provision (other than a taxation
secrecy provision or a law enforcement secrecy provision),
subclause 80(7) provides that the person cannot be liable to a
penalty for an offence of breaching the secrecy provision. Clause
80 also provides that it no excuse for a person to refuse or fail
to comply with a request made under clause 75 or 76 to answer a
question or produce information or documents or things on grounds
that doing so would be contrary to the public interest. Even though
clause 80 provides that legal professional privilege is no excuse
for refusing or failing to comply with a request made under clause
75 or 76, this does not impact on any other claim of legal
professional privilege that another person may wish to make in
relation to the information or document or thing. It is necessary
to abrogate the privilege against self-incrimination to ensure that
the Integrity Commissioner can be given access to information,
documents and things relevant to an investigation into a corruption
issue. The inclusion of a use immunity in all but five limited
cases provides a safeguard to persons that are required to answer
questions or produce documents or information or things under a
request made under clause 75 or 76 that compliance with that
request cannot be used against them in criminal proceedings or
proceedings for the imposition or recovery of a penalty (this
includes civil penalty proceedings). “Corruption issue”
is a term defined in clause 7 of the Bill. It is necessary to not
provide a use immunity for proceedings for an offence against
clause 78 of the Bill (failure to comply with a request under
clause 75 or 76 of the Bill), confiscation proceedings (defined in
clause 5 of the Bill), proceedings for an offence of providing
false or misleading information (sections 137.1 and 137.2 of the
Criminal Code ), proceedings for an offence of obstructing a
Commonwealth public official (section 149.1 of the Criminal
Code ) or disciplinary proceedings because the nature of these
proceedings is that they rely on evidence of the contravention.

Further, the Integrity Commissioner may make
the necessary arrangements for the protection of a person if the
person’s safety may be prejudiced, or the person may be
subjected to intimidation or harassment, because the person, or
another person, has given or is to give information, a document or
a thing to the Integrity Commissioner under clause 75 or 76.
These arrangements may include arrangements with the Minister
administering the legislation, a member of the AFP or a member of a
State or Territory police force.

This clause expressly does not affect the
Witness Protection Act 1994 , but provides a means by which
threats to witnesses and their associates that are less serious
than those addressed by that Act may be dealt with, in accordance
with the Senate Committee’s recommendation 4. In an
appropriately serious case, the Integrity Commissioner will also
have the authority to seek protection for a person under the
Witness Protection Act (see item 97 of Schedule 1 to the Law
Enforcement Integrity Commissioner (Consequential Amendments) Bill
2006).

Division 2-Conducting
Hearings

Subdivision A-General
Provisions

Clause 82: Integrity Commissioner may hold
hearings

Clause 82 confers powers on the Integrity
Commissioner to hold a hearing for the purpose of investigating a
corruption issue or conducting a public inquiry. “Corruption
issue” is a term defined in clause 7 of the Bill.
“Public inquiry” is defined to mean an inquiry
conducted by the Integrity Commissioner pursuant to Part 8 of the
Bill. The Integrity Commissioner has a general power to regulate
the conduct of proceedings at a hearing as he or she sees fit. This
is similar to subsection 25A(1) of the ACC Act.

Hearing in relation to an investigation
into a corruption issue

Subclause 82(3) confers power on the Integrity
Commissioner to hold the whole, or part of, a hearing into a
corruption issue in public or in private. In determining whether to
hold a hearing into a corruption issue in public or in private,
subclause 82(4) requires the Integrity Commissioner to have regard
to whether:

â¢ Evidence
that may be given, or a matter that could arise, in the hearing is
of a confidential nature, or relates to the commission (whether
real, alleged or suspected) of an offence,

â¢ A
person’s reputation could be unfairly prejudiced if the
hearing is held in public, and

â¢ It is in the
public interest for the hearing to be held in public.

In making the decision whether a hearing into
a corruption issue should be held in public or private, the
Integrity Commissioner is also required to consider any other
relevant matters. Even where the Integrity Commissioner determines
that a hearing into a corruption issue is to be held in public,
under clause 89 a witness can still request that his or her
evidence be taken in private. Under subclause 89(3) the Integrity
Commissioner can allow evidence in a public hearing to be given in
private if he or she considers it appropriate.

Hearing in relation to a public
inquiry

Subclause 82(5) requires that a hearing into a
public inquiry be held in public, however it also confers a
discretion on the Integrity Commissioner to direct that part of a
hearing into a public inquiry be held in private. It is necessary
for the Integrity Commissioner to have the discretion to hold part
of a hearing into a public inquiry in private because subclause
89(1) of the Bill provides that certain evidence can only be given
in private. Subclause 89(1) requires evidence to be given in
private if the evidence would disclose:

â¢ Legal advice
given to a Minister or Commonwealth Government Agency, or

â¢ A
communication between another officer of a Commonwealth government
agency and another person, if that disclose is protected by legal
professional privilege.

Subclause 89(1) also requires that evidence be
given in private if giving the evidence would breach a secrecy
provision. There is an exception to the requirement to give
evidence at all if disclosure would breach a taxation secrecy
provision or a law enforcement secrecy provision. If answering the
question or disclosing information or a document or thing would
breach a taxation secrecy provision or a law enforcement secrecy
provision, the person will not be required to answer the question
or disclose the information or document or thing. This also means
that the person could not be held criminally responsible under
clause 78 for failing to comply with a request made under clause 75
or 76. ‘Taxation secrecy provision’ and ‘law
enforcement secrecy provision’ are terms defined in clause 5
of the Bill.

If a person answers a question or provides
documents or information or things in response to a request made of
him or her under clause 75 or 76, and that answer or disclosure
constitutes a breach of a secrecy provision (other than a taxation
secrecy provision or a law enforcement secrecy provision),
subclause 80(7) provides that the person cannot be liable to a
penalty for an offence of breaching the secrecy provision. Lastly,
if the evidence involves the disclosure of information that is the
subject of a certificate issued by the Attorney-General under
clause 149, the evidence will also need to be given in private in
order to comply with the terms of the certificate.

Record of a hearing

Subclause 82(6) requires the Integrity
Commissioner to make a record of each hearing he or she conducts.
Subclause 82(7) sets out certain matters that the Integrity
Commissioner must cause to be included in a record of a hearing.
These are:

â¢ Any document
produced to the Integrity Commissioner at the hearing, and

â¢ Description
of any thing (other than a document) produced to the Integrity
Commissioner at the hearing.

However, the Integrity Commissioner will not
be required to include these matters in the record of a hearing if
he or she directs otherwise under subclause 82(7). A direction
given by the Integrity Commissioner under subclause 82(7) is not a
legislative instrument. The Integrity Commissioner holds the
discretion as to whether a hearing into a corruption issue will be
heard in public or in private.

Clause 83: Integrity Commissioner may
summon person

Clause 83 confers power on the Integrity
Commissioner to summon a person. Under subclause 83(1) the
Integrity Commissioner can serve a summons on a person to attend a
hearing at a time and place specified in the summons for the
purpose of giving evidence or producing documents or things
specified in the summons. The summons must be in writing, signed by
the Integrity Commissioner and served on the person required to
attend the hearing (subclause 83(2)). If the hearing is held for
the purpose of investigating a corruption issue and the summons
requires the person to give evidence at the hearing, the summons
must set out, to the extent that is reasonably practicable, the
general nature of the matters that Integrity Commissioner intends
to question the person on (subclause 83(3)). The Integrity
Commissioner will not be required to set out the matters if he or
she is satisfied that doing so would be likely to prejudice the
investigation into the corruption issue, or any action that could
be taken as a result of the investigation into the corruption issue
(as examples, disciplinary action, criminal prosecution, or
proceedings for a contravention of a civil penalty provision).
Although a summons requiring a person to attend a hearing to answer
questions should set out the matters that the Integrity
Commissioner intends to question a person on, subclause 83(4)
provides that if the matters are listed in the summons, the matters
listed will not limit the ability of the Integrity Commissioner to
question the person on aspects of any corruption issue (whether or
not it is the corruption issue that the hearing relates to). Clause
103 provides that a person can apply for legal and financial
assistance in respect of his or her attendance at a hearing.
Subclause 83(6) provides that a person that is summoned under
clause 83 to appear as a witness at a hearing is entitled to be
paid allowances for travel and other expenses. The regulations will
prescribe the allowances. It is necessary for the allowances to be
prescribed in the regulations so that the allowances can be
adjusted in a timely manner to respond to changes in market
conditions. This is similar to section 8 of the Royal Commissions
Act and sections 26 and 27 of the ACC Act. Failure to comply with a
summons issued under clause 83 is an offence under clause 93 of the
Bill. It is also an offence for a person to disclose the existence
of a summons, or information about a summons (see clause 92 of the
Bill). A person may not be able to comply with a summons issued
under clause 83 because of the operation of subclause 150(2) which
prohibits the disclosure of documents or information that are the
subject of a certificate issued by the Attorney-General under
clause 149 of the Bill. In such cases, the person cannot be held to
be criminally responsible for the offence in clause 93 for failing
to comply with the summons.

Clause 84: Integrity Commissioner may take
evidence outside Australia

If there are arrangements in place between
Australia and another country that allow evidence to be taken in
that other country for the purposes of a hearing held under
Division 2 of Part 9 of the Bill, the Integrity Commissioner may
take evidence on oath or by affirmation in that country. Provided
that use of the evidence is in accordance with Australia’s
arrangement with the other country, the Integrity Commissioner can
use the evidence for the purposes of performing his or her
functions, or exercising his or her powers, under the Bill. This
clause is necessary because many staff members of Commonwealth law
enforcement agencies perform operations and duties outside
Australia. This clause enables the Integrity Commissioner to obtain
evidence from these persons even though they are not located in
Australia at the relevant time. This clause is similar to section
7B of the Royal Commissions Act.

Subdivision B-Procedure at
Hearing

Clause 85: Who may be represented at a
hearing

Those providing evidence at a hearing are
entitled to be represented by a legal practitioner. Those not
providing evidence at a hearing are also entitled to be represented
by a legal practitioner if special circumstances exist and they
have consent from the Integrity Commissioner.

Clause 86: Who may be present at a
hearing

Subclause 86(1) provides that, for a private
hearing, the Integrity Commissioner may determine the people who
can be present during all, or part of the hearing. A determination
made by the Integrity Commissioner under subclause 86(1) is not a
legislative instrument. In any case however, apart from the
discretion conferred on the Integrity Commissioner under subclause
86(10), the Integrity Commissioner must allow all legal
practitioners representing a person giving evidence to be present
when the evidence is being given. The Integrity Commissioner can
also consent to a legal practitioner representing a person not
giving evidence to be present. If a witness is giving evidence at a
hearing and there is another person present who is neither a staff
member of ACLEI nor a legal practitioner representing a person at
the hearing, the Integrity Commissioner must inform the witness
that the person is present and give the witness an opportunity to
comment on the person’s presence. This is similar to
subsections 25A(4), (5), (7), (8) and (14) of the ACC Act. Staff
member of ACLEI is a term defined in clause 11 of the Bill. For the
avoidance of doubt, subclause 86(4) provides that even if a witness
makes an adverse comment about the presence of a person at a
hearing, the person is still entitled to be there if the Integrity
Commissioner has made a determination under subclause 86(1) that he
or she can be present at the hearing. Subclause 86(4) also
provides, for the avoidance of doubt, that even if the Integrity
Commissioner fails to inform the witness that a person, who is
neither a staff member of ACLEI nor a legal practitioner
representing a person at the hearing, is present at the hearing, or
the Integrity Commissioner does not give the witness the
opportunity to comment on the person’s presence at the
hearing, the person is still entitled to be present at the hearing
if the Integrity Commissioner has determined this to be the case
under subclause 86(1). Subclause 86(5) creates a criminal offence.
The offence applies if a person is present while evidence is being
given in private at a hearing and the person is not authorised to
be there. The only time a person can be taken to be authorised to
be there is where:

â¢ The person
is giving evidence, or

â¢ The person
is a legal practitioner representing a person giving evidence,

â¢ The person
is a legal practitioner and even though he or she is not
representing a person giving evidence, the Integrity Commissioner
has consented to him or her being present,

â¢ The
Integrity Commissioner has determined under subclause 86(1) that
the person can be present.

The offence is punishable by a maximum penalty
of 12 months imprisonment.

Subdivision C-Taking Evidence at
Hearing

Clause 87: Evidence on oath or by
affirmation

The Integrity Commissioner may require a
witness at a hearing to take an oath or affirmation. Clause 87
confers power on the Integrity Commissioner to administer an oath
or affirmation to a witness. The consequence of the power of the
Integrity Commissioner under subclause 87(1) to compel a witness to
take an oath or affirmation is that hearings held by the Integrity
Commissioner under the Bill are characterised as ‘judicial
proceedings’ under Part III of the Crimes Act. This means
that the offences attaching to judicial proceedings as set out in
Part III of the Crimes Act are applicable to hearings conducted
under the Bill. For example, offences for giving false testimony,
fabricating evidence, intimidation of witnesses, corruption of
witnesses, deceiving witnesses, destroying evidence etc are
available. If the Integrity Commissioner is taking evidence from a
witness overseas, as he or she is authorised to do under clause 84
of the Bill, the Integrity Commissioner is empowered by subclause
87(2) to administer an oath or affirmation on the witness. If the
Integrity Commissioner does administer an oath or affirmation on a
witness overseas, subclause 87(2) requires the Integrity
Commissioner to ensure that the oath or affirmation is administered
in accordance with the arrangement made between Australia and the
other country for the taking of that evidence (this is the same
‘arrangement’ referred to in clause 84 of the Bill) and
in accordance with the laws of that other country. Provided that
use of the evidence is in accordance with Australia’s
arrangement with the other country, clause 84 provides that the
Integrity Commissioner can use the evidence for the purposes of
performing his or her functions, or exercising his or her powers,
under the Bill. An oath or affirmation administered by the
Integrity Commissioner under clause 87 is an oath or affirmation
that the evidence the witness will give will be true. Under
subclause 87(4) the Integrity Commissioner has a discretion to
allow a person who is attending a hearing who has been sworn or has
made an affirmation to give evidence at the hearing by tendering a
written statement and verifying it by oath or affirmation. Failure
to take an oath or make an affirmation if requested by the
Integrity Commissioner is an offence under clause 93 of the Bill.
The offence is punishable by a maximum penalty of two years
imprisonment. Clause 96 of the Bill abrogates the privilege against
self-incrimination for this offence. Conferring power on the
Integrity Commissioner to compel a witness to take an oath or
affirmation ensures the efficacy of evidence given in a
hearing.

Clause 88: Examination and
cross-examination of witnesses

The Integrity Commissioner can allow for a
witness to be examined and cross-examined during a hearing. However
the only persons who the Integrity Commissioner can authorise to
conduct examination and cross-examination are:

â¢ Counsel
assisting the Integrity Commissioner generally,

â¢ Counsel
assisting the Integrity Commissioner in the investigation or public
inquiry to which the hearing relates,

â¢ Persons
summoned, or otherwise authorised under the Bill, to appear before
the Integrity Commissioner, and

â¢ Legal
practitioners representing a person at the hearing.

This clause provides for a way for evidence of
a witness to be adduced and tested during a hearing. It is similar
to section 6FA of the Royal Commissions Act and subsections 25A(2)
and (6) of the ACC Act.

Clause 89: Giving evidence in
private

Certain evidence must be given in
private

Subclause 89(1) of the Bill provides that
certain evidence can only be given in private. Subclause 89(1)
requires evidence to be given in private if the evidence would
disclose:

â¢ Legal advice
given to a Minister or Commonwealth Government Agency, or

â¢ A
communication between another officer of a Commonwealth government
agency and another person, if that disclosure is protected by legal
professional privilege.

Subclause 89(1) also requires that evidence be
given in private if giving the evidence would breach a secrecy
provision. There is an exception to the requirement to give
evidence at all if disclosure would breach a taxation secrecy
provision or a law enforcement secrecy provision. If answering the
question or disclosing information or a document or thing would
breach a taxation secrecy provision or a law enforcement secrecy
provision, the person will not be required to answer the question
or disclose the information or document or thing. This also means
that the person could not be held criminally responsible under
clause 78 for failing to comply with a request made under clause 75
or 76. ‘Taxation secrecy provision’ and ‘law
enforcement secrecy provision’ are terms defined in clause 5
of the Bill. If a person answers a question or provides documents
or information or things in response to a request made of him or
her under clause 75 or 76, and that answer or disclosure
constitutes a breach of a secrecy provision (other than a taxation
secrecy provision or a law enforcement secrecy provision),
subclause 80(7) provides that the person cannot be liable to a
penalty for an offence of breaching the secrecy provision. Lastly,
if the evidence involves the disclosure of information that is the
subject of a certificate issued by the Attorney-General under
clause 149, the evidence may also need to be given in private in
order to comply with the terms of the certificate.

Person may request that certain evidence be
given in private

Under subclause 89(2), a witness who is giving
evidence at a public hearing can request that the evidence be given
in private if the evidence relates to the profits or financial
position of a person and the taking of the evidence in pubic would
be unfairly prejudicial to the interests of that person. Under
subclause 89(3) the Integrity Commissioner has the discretion to
allow the evidence to be given in appropriate if he or she
considers it appropriate.

Clause 90: Directions in relation to
confidentiality

Prohibition of limitation on
publication

Subclause 90(1) confers power on the Integrity
Commissioner to issue a direction limiting or preventing the
publication of evidence, documents and descriptions of things
produced to the Integrity Commissioner during a hearing. Under
subclause 90(1) the Integrity Commissioner can also prevent or
limit the publication of information that could enable the
identification of a person who has given evidence at a hearing, or
the fact that the person has given, or may be about to give,
evidence at the hearing. The Integrity Commissioner has a
discretion whether to issue a direction under subclause 90(1)
unless the hearing is being held in private and the Integrity
Commissioner is satisfied that failure to give a direction might
prejudice a person’s safety or reputation, or the fair trial
of a person who has been or may be charged with an offence. In such
cases, subclause 90(2) removes the Integrity Commissioner’s
discretion and requires him or her to issue a direction under
subclause 90(1). The Integrity Commissioner’s discretion as
to whether to issue a direction under subclause 90(1) is also
removed so that the Integrity Commissioner must issue a direction
where the evidence, document, information or thing might lead to
the publication of information that is the subject of a certificate
issued by the Attorney-General under clause 149 of the Bill.
Failure to comply with a direction issued by the Integrity
Commissioner under subclause 90(1) is an offence under subclause
90(6), punishable by a maximum penalty of 12 months imprisonment.
Under subclause 90(3) the Integrity Commissioner has a limited
ability to vary or revoke a direction given under subclause 90(1).
The Integrity Commissioner cannot vary or revoke a direction if the
Integrity Commissioner is satisfied that doing so might prejudice a
person’s safety or reputation or the fair trial of a person
who has been or may be charged with an offence, or could lead to
the publication of information that is the subject of a certificate
issued by the Attorney-General under clause 149 of the Bill. Any
variation to, or revocation of, a subclause 90(1) direction must be
given in writing.

Court certificate in relation to evidence
in respect of which a direction has been given

Where a person has been charged with an
offence, before a federal court or a court of a State or Territory,
and the Court considers it to be desirable in the interests of
justice that particular evidence that is the subject of a direction
given by the Integrity Commissioner under subclause 90(1) be made
available to the person or a legal practitioner representing the
person, the Court is empowered to give the Integrity Commissioner a
certificate to that effect. If the Integrity Commissioner is given
a certificate by a court under subclause 90(4), he or she must make
the evidence available to the Court. If the Integrity Commissioner
provides evidence to a Court pursuant to a certificate issued by
the Court under subclause 90(4), the Court may, after examining the
evidence, make the evidence available to the person charged with
the offence concerned, or to a legal practitioner representing the
person, provided that the court is satisfied that the interests of
justice so require (subclause 90(5)). The Court makes the final
determination whether the evidence should be passed to the
defendant, or the defendant’s legal practitioner.

Offence

Subclause 90(6) makes it an offence for a
person to contravene a direction given to him or her by the
Integrity Commissioner under subclause 90(1).The offence is
punishable by a maximum penalty of 12 months imprisonment.

Subdivision D-Prohibitions against
disclosing information about a summons and offences

Clause 91: Disclosure of summons may be
prohibited

If a summons has been served on a person under
clause 83 requiring the person to attend a private hearing, under
subclause 91(2) the Integrity Commissioner has a general discretion
(limited by subclauses 91(3)-(5)) to include a notation in the
summons preventing or limiting disclosure of information about the
summons or any official matter connected with the summons.
‘Official matter’ is defined in clause 5 of the Bill.
Under subclause 91(3) the Integrity Commissioner will be required
to include a notation (no discretion) if the Integrity Commissioner
is satisfied that failure to include a notation would reasonably be
expected to prejudice the safety, reputation or fair trial of a
person, or an investigation or action taken as a result of an
investigation, whether that investigation relates to the hearing or
another corruption issue. If the Integrity Commissioner has a
discretion whether to include a notation in a summons (that is,
subclause 91(3) does not apply), subclause 91(4) provides that the
Integrity Commissioner can only include the notation if satisfied
that failure to do so might prejudice the safety, reputation or
fair trial of a person, or an investigation or action taken as a
result of an investigation, whether that investigation relates to
the hearing or another corruption issue, or would otherwise be
contrary to the public interest. If none of these factors are
present, subclause 91(5) provides that the Integrity Commissioner
cannot include a notation in a summons.

Written statement to accompany
notation

If a notation is included in a summons,
subclause 91(6) requires that the summons must be accompanied by a
written statement that sets out the rights and obligations
conferred and imposed by clause 92 of the Bill.

Cancellation of a notation

Subclause 91(7) provides that a notation to a
summons is cancelled if the Integrity Commissioner concludes the
subject investigation and any criminal proceedings resulting from
the investigation have commenced. If a notation is cancelled,
subclause 91(8) requires the Integrity Commissioner to advise the
person that was served the summons of the cancellation in writing.
This Clause is designed to prevent a disclosure which could lead to
the destruction, or alteration of evidence, intimidation of
witnesses etc. Disclosing the mere existence of an investigation
may prompt actions of those under investigation, detrimentally
affecting the Integrity Commissioner’s outcome. However, a
specified circumstance allowing disclosure is likely to be in order
to obtain legal advice.

Relationship of notation with Privacy
Act

Subclause 91(9) provides that where a notation
has been made on a summons, credit reporting agencies are
prohibited from making a note about any disclosure of personal
information they make about an individual unless the notation is
cancelled. This is relevant because credit reporting agencies would
otherwise be required to make a note about that disclosure in the
individual’s credit information file (subsection 18(5) of the
Privacy Act).

Clause 92: Offences of disclosure

Offence

Subclause 92(1) creates a criminal offence
where a person who has been served with a summons (under clause 83
of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person discloses the existence
of, or any information about, the summons or any official matter
connected with the summons. The elements of the offence will only
be satisfied if the prosecution can prove that the notation was not
cancelled by subclause 91(7) and five years has not passed since
the summons was served on the person. Official matter is defined in
clause 5 of the Bill. The offence is punishable by a maximum
penalty of 12 months imprisonment.

Defence

Subclause 92(2) provides a defence to the
offence in subclause 92(1) where the disclosure was made:

â¢ In circumstances permitted by the terms
of the notation,

â¢ To a legal practitioner for the purpose
of obtaining legal advice or representation in relation to the
summons,

â¢ To a legal aid officer for the purpose
of obtaining assistance in relation to the summons,

â¢ Where the person is a body
corporate—to an officer or agent of the body corporate for
the purpose of ensuring compliance with the summons, or

â¢ Where the person is a legal
practitioner—for the purpose of obtaining the agreement of
another person to allow the legal practitioner to answer questions
or produce documents or things at a hearing.

If a defendant wishes to rely on the defence
in subclause 92(2), he or she will bear an evidentiary burden in
relation to the matters set out in subclause 92(2). This is because
of the operation of section 13.3 of the Criminal Code. It is
appropriate for the defendant to bear the burden of proving these
matters because they are matters that, by their nature, are within
the knowledge of the defendant.

Offence

Subclause 92(3) creates a criminal offence
where a person who has been served with a summons (under clause 83
of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person discloses the existence
of, or any information about, the summons or any official matter
connected with the summons. The elements of the offence will only
be satisfied if the prosecution can prove that the notation was not
cancelled by subclause 91(7) and five years has not passed since
the summons was served on the person. Official matter is defined in
clause 5 of the Bill. The offence is punishable by a maximum
penalty of 12 months imprisonment.

Defence

Subclause 92(4) provides a defence to the
offence in subclause 92(3) where the disclosure was made:

â¢ if the person is an officer or agent of
a body corporate referred to in paragraph (2)(d):

- to another
officer or agent of the body corporate for the purpose of ensuring
compliance with the summons,

- to a legal
practitioner for the purpose of obtaining legal advice or
representation in relation to the summons, or

- to a legal aid
officer for the purpose of obtaining assistance under section ^103
in relation to the summons, or

â¢ if the person is a legal
practitioner—for the purpose of giving legal advice, making
representations, or obtaining assistance in relation to the
summons, or

â¢ if the person is a legal aid
officer—for the purpose of obtaining legal advice or
representation in relation to the summons.

If a defendant wishes to rely on the defence
in subclause 92(4), he or she will bear an evidentiary burden in
relation to the matters set out in subclause 92(4). This is because
of the operation of section 13.3 of the Criminal Code. It is
appropriate for the defendant to bear the burden of proving these
matters because they are matters that, by their nature, are within
the knowledge of the defendant.

Offence

Subclause 92(5) creates a criminal offence
where a person who has been served with a summons (under clause 83
of the Bill) that includes a notation (included on the summons
under clause 91 of the Bill) and the person makes a record of, or
discloses the existence of, or any information about, the summons
or any official matter connected with the summons. The elements of
the offence will only be satisfied if the prosecution can prove
that the notation was not cancelled by subclause 91(7) and five
years has not passed since the summons was served on the person.
The restrictions of disclosure are imposed to ensure the quality of
investigations and to protect the nature of any proceedings. The
offences are aimed at preventing investigative work from being
compromised by the disclosure of information that could infer the
identity of a witness or the existence of an investigation.
Subclause 92(6) provides that a reference in clause 92 to
disclosing the existence of something extends to the disclosure of
information from which a person could reasonably be expected to
infer its existence.

Subdivision E-Offences in relation to
hearings

Clause 93: Offences

This Clause outlines various offences for
failing to comply with a summons served by the Integrity
Commissioner.

Offence for failure to attend
hearing

Subclause 93(1) makes it is an offence for a
person to fail to attend or report from day to day at a hearing if
required to do so under a summons. There is an exception to this
offence where the defendant can prove that the Integrity
Commissioner excused him or her from attending the hearing. The
defendant will bear an evidentiary burden to prove that he or she
was excused if he or she wishes to rely on this exception. The
defendant bears the evidentiary burden because of the operation of
section 13.3 of the Criminal Code. The offence is punishable by a
maximum penalty of 12 months imprisonment.

Failure to swear an oath or make an
affirmation

Subclause 93(2) makes it an offence for a
person who is served with a summons to attend a hearing to fail to
be sworn or make an affirmation at the hearing. The offence is
punishable by a maximum penalty of 2 years imprisonment. Under
clause 80, the privilege against self-incrimination is abrogated,
but certain use immunities apply.

Failure to answer questions

Subclause 93(2) also makes it an offence for a
person who is served with a summons to attend a hearing to fail to
answer questions that the Integrity Commissioner requires the
person to answer at the hearing. This offence is subject to the
operation of clause 95 and 150 of the Bill. This offence is
punishable by a maximum penalty of 2 years imprisonment. Under
clause 80, the privilege against self-incrimination is abrogated,
but certain use immunities apply.

Failure to produce a document or
thing

Subclause 93(4) makes it an offence for a
person to fail to produce a document or thing the person was
required to produce under a summons served on them by the Integrity
Commissioner. This offence is subject to the operation of clause 95
and 150 of the Bill. This offence is punishable by a maximum
penalty of 2 years imprisonment. Under clause 80, the privilege
against self-incrimination is abrogated, but certain use immunities
apply.

Clause 94: Contempt

Clause 94 creates three types of offences that
support the Integrity Commissioner’s power to control the
proceedings of hearings and address improper behaviour. The
offences will preserve the integrity and due conduct of
proceedings. Subclause 94(1) makes it an offence for a person to
insult, disturb or use insulting language toward another person
where that other person is the Integrity Commissioner. The offence
will only be made out if the on can prove that the person knew that
the other person was the Integrity Commissioner, and was holding a
hearing in the performance of his or her functions, or the exercise
of his or her powers, as the Integrity Commissioner. This offence
is punishable by a maximum penalty of 6 months imprisonment.
Subclause 94(2) makes it an offence for a person to create a
disturbance or take part in creating or continuing a disturbance in
or near a place where a hearing is being held for the purpose of
investigating a corruption issue or conducting a public inquiry.
The offence will only be made out if the prosecution can prove that
the person knew that the place is a place where a hearing is being
held for the purpose of investigating a corruption issue or
conducting a public inquiry. This offence is punishable by a
maximum penalty of 6 months imprisonment. Subclause 94(3) makes it
an offence for a person to interrupt a hearing that is being held
for the purpose of investigating a corruption issue or conducting a
public inquiry. It is also an offence under subclause 94(3) for a
person to do an act or thing that, if the hearing were being held
in a court of record, would constitute contempt of that Court. This
offence is punishable by a maximum penalty of 6 months
imprisonment.

If the Integrity Commissioner summons a legal
practitioner under clause 83 to attend a hearing and asks a legal
practitioner to answer questions, provide information or produce a
document or thing to the Integrity Commissioner at a hearing, the
legal practitioner can refuse to answer the question or provide the
documents or information or thing requested if doing so would
disclose privileged communications made by, or to, the legal
practitioner in his or her capacity as a legal practitioner. This
means that where disclosure by a legal practitioner would disclose
privileged communications, the legal practitioner cannot be held
criminally responsible for failing to answer the question or
provide the documents or information or thing under a summons. The
exception to the requirement to answer a question or provide
documents or information or things provided in clause 95 (that is,
where production of information, documents or things would disclose
privileged communications) will not be available to the legal
practitioner if the person to whom or by whom the privileged
communication was made agrees to the legal practitioner providing
the information or document or thing (subclause 95(3)). Where the
exception in clause 95 is available (that is, where the privilege
has not been waived by the person to whom or by whom the
communication was made) and the legal practitioner refuses to give
information or produce documents or things on that basis, that is,
on grounds that doing so would disclose privileged communications,
the Integrity Commissioner may request the legal practitioner to
provide the name and address of the person by, or to, whom the
communication was made (subclause 95(4)). A legal practitioner must
comply with such a request from the Integrity Commissioner. Clause
95 does not affect the law relating to legal professional
privilege.

Clause 96: Self-incrimination etc.

The privilege against self-incrimination is
abrogated in clause 96 of the Bill. This means that a person,
summoned under clause 83 to answer questions, provide information,
documents or things at a hearing cannot refuse to produce the
document, information or things on grounds that doing so could
incriminate him or her. The privilege is not completely abrogated;
rather, a use immunity is provided (see subclauses 96(2) and (4)).
However the use immunity is not available in five specified
circumstances (see subclause 96(4). The use immunity operates where
a person, prior to producing information or documents or things
pursuant to a summons, claims that doing so may tend to incriminate
or expose them to a penalty, the information or documents or things
will not be admissible as evidence against the person in criminal
proceedings or any other proceedings for the imposition or recovery
of a penalty. There are five circumstances where this use immunity
will not be available. The use immunity will not be available,
meaning that the information or documents or things will be able to
be used in evidence, in:

(i) Proceedings for
an offence against clause 93 of the Bill - failure to comply
with a summons issued by the Integrity Commissioner under clause 83
of the Bill,

(ii) Confiscation
proceedings - this term is defined in clause 5 of the Bill to
mean proceedings under the Proceeds of Crime Act 1987 or the
Proceeds of Crime Act 2002 , or a corresponding law within
the meaning of either of those Acts, but does not include a
criminal prosecution for an offence under either of those Acts or a
corresponding law,

(iii) Proceedings
for an offence against section 137.1 or 137.2 of the Criminal
Code - being offences for providing false or misleading
statements or documents,

(iv) Proceedings
for an offence against section 149.1 of the Criminal Code
- being an offence for obstructing a Commonwealth public
official, or

(v) Disciplinary
proceedings against the person if the person is a staff member of a
law enforcement agency - ‘disciplinary
proceedings’ is a term defined in clause 5 of the Bill and
extends to proceedings taken under a law of the Commonwealth, a
State or a Territory. This exclusion will only apply if the
disciplinary proceedings are against a staff member of a law
enforcement agency. That is, the use immunity will not be abrogated
in respect of disciplinary proceedings that could be taken in
respect of another profession (for example, the use immunity will
exist for information, documents or things produced by a doctor so
that they could not be used in disciplinary proceedings that might
be taken by an medical professional association against that
doctor, for example, for medical negligence).

Immunity on public interest grounds

A person is not excused from answering a
question or providing information or documents or things when
summoned under clause 83, on the grounds that answering the
question, or producing the information or documents or things would
disclose:

â¢ Legal advice
given to a Minister or Commonwealth Government Agency, or

â¢ A
communication between another officer of a Commonwealth government
agency and another person, if that disclose is protected by legal
professional privilege.

Commonwealth government agency is a term
defined in clause 5 of the Bill. Similarly, a person is not excused
from answering a question or providing information or documents or
things when summoned under clause 83, on the grounds that answering
the question, or producing the information or documents or things
would breach a secrecy provision. There is an exception however if
disclosure would breach a taxation secrecy provision or a law
enforcement secrecy provision. This means that if answering the
question or disclosing the information or document or thing would
breach a taxation secrecy provision or a law enforcement secrecy
provision, the person will not be required to answer the question
or disclose the information or document or thing and hence could
not be held criminally responsible under clause 93 for failing to
comply with a summons issued under clause 83. ‘Taxation
secrecy provision’ and ‘law enforcement secrecy
provision’ are terms defined in clause 5 of the Bill. If a
person answers a question or provides documents or information or
things in response to a summons served on him or her under clause
83 of the Bill, and that answer or disclosure constitutes a breach
of a secrecy provision (other than a taxation secrecy provision or
a law enforcement secrecy provision), subclause 96(7) provides that
the person cannot be liable to a penalty for an offence of
breaching the secrecy provision. Clause 96 also provides that it is
no excuse for a person to refuse or fail to comply with a summons
issued under clause 83 to answer a question or produce information
or documents or things on grounds that doing so would be contrary
to the public interest. Even though clause 96 provides that legal
professional privilege is no excuse for refusing or failing to
comply with a summons issued under clause 83, this does not impact
on any other claim of legal professional privilege that another
person may wish to make in relation to the information or document
or thing. It is necessary to abrogate the privilege against
self-incrimination to ensure that the Integrity Commissioner can be
access to information, documents and things relevant to an
investigation into a corruption issue. The inclusion of a use
immunity in all but five limited cases provides a safeguard to
persons that are required to answer questions or produce documents
or information or things under a summons cannot be used against him
or her in criminal proceedings or proceedings for the imposition or
recovery of a penalty (this includes civil penalty proceedings).
Corruption issue is a term defined in clause 7 of the Bill. It is
necessary to not provide a use immunity for proceedings for an
offence against clause 93 of the Bill (failure to comply with a
summons), confiscation proceedings (defined in clause 5 of the
Bill), proceedings for an offence of providing false or misleading
information (sections 137.1 and 137.2 of the Criminal Code ),
proceedings for an offence of obstructing a Commonwealth public
official (section 149.1 of the Criminal Code ) or
disciplinary proceedings because the nature of these proceedings is
that they rely on evidence of the contravention.

Clause 97: Integrity Commissioner may apply
for order that witness deliver his or her passport

Clause 97 gives the Integrity Commissioner
standing to apply to a Judge of the Federal Court for an order that
a person deliver his or her passport to the Integrity Commissioner.
The Integrity Commissioner can only apply to the Judge if:

(i) the person has
been served with a summons under clause 83 of the Bill to attend a
hearing into a corruption investigation or public inquiry, or the
person has already attended a hearing in relation to a corruption
investigation or public inquiry to give evidence or produce
documents or things, and

(ii) there are
reasonable ground for believing that the person may be able to give
evidence that is relevant to the investigation or public inquiry,
and

(iii) there are
reasonable grounds for suspecting that the person has, in his or
her possession, custody or control, a passport issued to him or
her, and

(iv) there are
reasonable grounds for suspecting that the person intends to leave
Australia.

In applying for an order under subclause
97(1), subclause 97(2) requires that the Integrity Commissioner
give the Judge the information on oath or by affirmation. This
Clause is aimed at preserving the evidence of witnesses by assuring
their attendance at a hearing to provide information, documents,
things or testimony where there is a reasonable suspicion that the
witness may leave Australia before providing that evidence.

Clause 98: Court Orders

This Clause allows the Federal Court make an
independent decision about whether a person’s passport should
be submitted to the Integrity Commissioner.

Court order for a witness to appear before
the court

If a Judge of the Federal Court, while sitting
in Chambers, is satisfied on the evidence that the requirements set
out in subclause 97(1) are met, that is, the Judge is satisfied
that:

(i) a person has
been served with a summons under clause 83 of the Bill to attend a
hearing into a corruption investigation or public inquiry, or the
person has already attended a hearing in relation to a corruption
investigation or public inquiry to give evidence or produce
documents or things, and

(ii) there are
reasonable ground for believing that the person may be able to give
evidence that is relevant to the investigation or public inquiry,
and

(iii) there are
reasonable grounds for suspecting that the person has, in his or
her possession, custody or control, a passport issued to him or
her, and

(iv) there are
reasonable grounds for suspecting that the person intends to leave
Australia, subclause 98(1) confers power on the Judge to make an
order that requires the person to appear before the Federal Court
on a specified date, and at a specified time and place, to show
cause for why he or she should not be ordered to deliver his or her
passport to the Integrity Commissioner.

Offence

Subclause 98(2) makes it an offence for a
person to leave Australia if he or she has been served with a copy
of an order made by a Judge of the Federal Court under subclause
98(1) requiring him or her to appear before the Federal Court on a
specified date, and at a specified time and place, to show cause
for why he or she should not be ordered to deliver his or her
passport to the Integrity Commissioner. Subclause 98(3) provides an
exception to the offence in subclause 98(2) where the defendant can
prove that he or she appeared before the Federal Court as required
by the order. A defendant bears an evidential burden if he or she
wishes to rely on this exception in subclause 98(3). The burden
shifts to the defendant because of the operation of section 13.3 of
the Criminal Code. It is appropriate that the defendant bear the
evidential burden for this matter as it is a matter that is, by its
nature, peculiarly within the knowledge of the defendant. Subclause
98(3) creates a second exception to the offence in subclause 98(2)
where the court makes an order under subclause 98(4)(a) that the
defendant complied with the terms of the order made under subclause
98(1) and any passport delivered to the Integrity Commissioner was
returned to the person. A defendant bears an evidential burden if
he or she wishes to rely on this exception in subclause 98(3). The
burden shifts to the defendant because of the operation of section
13.3 of the Criminal Code. It is appropriate that the defendant
bear the evidential burden for this matter as it is a matter that
is, by its nature, peculiarly within the knowledge of the
defendant. The offence in subclause 98(2) is punishable by a
maximum penalty of 2 years imprisonment.

Court order that a witness deliver passport
to the Integrity Commissioner

Subclause 98(4) grants the Federal Court the
authority to make an order, if it thinks fit, requiring a person to
deliver a passport issued to him or her, or in his or her
possession, custody or control, to the Integrity Commissioner. The
Court may also order that the Integrity Commissioner can retain the
passport for a period not exceeding one month from the date the
order is made. This period can however be extended under subclause
98(5). The Federal Court can only make an order under subclause
98(4) if the person has appeared before the court pursuant to an
order made by a Judge of the Federal Court under subclause
98(1).

Extension of period that the Integrity
Commissioner may retain passport

Under subclause 98(5) the Integrity
Commissioner can apply to the Federal Court to extend the period
for which the Integrity Commissioner can retain a passport
delivered to the Integrity Commissioner pursuant to an order made
under subclause 98(4). Under subclause 98(5) the Federal Court may,
on application by the Integrity Commissioner, extend the period for
which the Integrity Commissioner can retain a passport delivered to
the Integrity Commissioner pursuant to an order made under
subclause 98(4), for a further period or periods not exceeding one
month in each case. However, the total period for which the
Integrity Commissioner can retain a passport delivered to him or
her pursuant to an order made under subclause 98(4) is 3 months.
That is, the Federal Court cannot extend the period for which the
Integrity Commissioner can retain the passport beyond a cumulative
total period of 3 months.

Revocation of court order

Subclause 98(6) provides that if the Federal
Court makes an order authorising the Integrity Commissioner to
retain a passport issued to a person, the person may apply to the
Federal Court for the order to be revoked. Subclause 98(7) provides
that if the Federal Court revokes the order, the Integrity
Commissioner must return the passport to the person
immediately.

Jurisdiction of the Federal Court

Subclause 98(8) provides the Federal Court
with jurisdiction in respect of matters that arise out of the
operation of clause 98 of the Bill.

Definition

Subclause 98(9) defines
‘Australia’, for the purposes of the operation of
clause 98 of the Bill, to include its external territories.

Clause 99: Applying for a warrant to arrest
witness

Subclause 99(1) confers power on an authorised
officer to apply to a Judge of the Federal Court of Australia, or
of the Supreme Court of a State or Territory, for a warrant to
arrest a person. An authorised officer can only make an application
to a Court under subclause 99(1) if he or she has reasonable
grounds to believe that the person falls within one of the three
categories that follow:

(i) The person has
been ordered to deliver his or her passport to the Integrity
Commissioner (whether or not the person has complied with the
order) and is likely to leave Australia for the purpose of avoiding
giving evidence at a hearing before the Integrity Commissioner,
or

(ii) The person has
been served with a summons issued under clause 83 and has either
absconded or is likely to abscond, or is otherwise attempting, or
likely to attempt, to evade service of the summons, or

(iii) The person
has committed an offence under subclause 93(1) or is likely to do
so.

‘Authorised officer’ is a term
defined in clause 5 of the Bill. In making an application under
subclause 99(1), subclause 99(2) requires that the authorised
officer give the Judge the information required in subclause 99(1)
either on oath, or by affirmation.

Clause 100: Warrant for arrest

Issue of warrant

If a Judge, while sitting in Chambers, is
satisfied on the evidence that there are reasonable grounds for
believing that the matters set out in subclause 99(1)(a) or
99(1)(b) or 99(1)(c) are met, that is, either:

(i) The person has
been ordered to deliver his or her passport to the Integrity
Commissioner (whether or not the person has complied with the
order) and is likely to leave Australia for the purpose of avoiding
giving evidence at a hearing before the Integrity Commissioner
(subclause 99(1)(a)), or

(ii) The person has
been served with a summons issued under clause 83 and has either
absconded or is likely to abscond, or is otherwise attempting, or
likely to attempt, to evade service of the summons (subclause
99(1)(b)), or

(iii) The person
has committed an offence under subclause 93(1) or is likely to do
so (subclause 99(1)(c)), subclause 100(1) confers power on the
Judge to issue a warrant authorising the authorised officer to
arrest the person.

‘Authorised officer’ is a term
defined in clause 5 of the Bill. The test as to whether there are
reasonable grounds for believing that the matters set out in
subclause 99(1)(a) or 99(1)(b) or 99(1)(c) are met is an objective
test.

Execution of warrant

Subclause 100(2) provides that, for the
purpose of executing a warrant issued under subclause 100(1), if
the authorised officer executing the warrant, or an assisting
officer, believes on reasonable grounds that the person to whom the
warrant relates is on certain premises, the authorised officer or
assisting officer is authorised to break into, and enter, those
premises. The test in subclause 100(2) as to whether there are
reasonable grounds for believing that the person to whom the
warrant relates is on the premises is an objective test. However,
if the premises are a dwelling house, subclause 100(3) limits the
ability of the authorised officer or assisting officer to enter the
premises. Subclause 100(3) prohibits the authorised officer
executing the warrant, or assisting officer, from entering a
dwelling house at any time during the period commencing at 9 pm on
a day and ending at 6 am on the following day unless the authorised
officer or assisting officer believes on reasonable grounds that it
would not be practicable to arrest the person, either at the
dwelling house or elsewhere, at another time. ‘Authorised
officer’ and ‘assisting officer’ are terms
defined in clause 5 of the Bill. The test in subclause 100(3) as to
whether there are reasonable grounds for believing that it would
not be practicable to arrest the person, either at the dwelling
house or elsewhere, at another time is an objective test. In
arresting a person under a warrant issued under subclause 100(1),
subclause 100(4) prohibits the authorised officer executing the
warrant, or assisting officer, from using more force, or subjecting
the person to greater indignity, than is necessary and reasonable
to make the arrest or to prevent the escape of the person after the
arrest. Under subclause 100(5) a warrant issued under subclause
100(1) can be executed even if the authorised officer dopes not
have a copy of the warrant in his or her

possession at the time that the warrant is
executed. Subclause 100(6) requires the authorised officer
executing a warrant issued under subclause 100(1), or an assisting
officer who arrests the person to whom the warrant relates, to
inform the person, at the time of the arrest, of the reason for
which he or she is being arrested. For the purposes of informing
the person under subclause 100(6), subclause 100(7) provides that
it is sufficient if the person is informed of the substance of the
reason. That is, it is not necessary that this be done in language
of a precise or technical nature. There is an exception to the
requirement on an authorised officer or assisting officer under
subclause 100(6) to inform the person, at the time of the arrest,
of the reason for which he or she is being arrested. Subclause
100(8) provides that the requirement on an authorised officer or
assisting officer under subclause 100(6) to inform the person, at
the time of the arrest, of the reason for which he or she is being
arrested does not apply if:

â¢ the person
should, in the circumstances, know the substance of the reason for
which he or she is being arrested, or

â¢ the
person’s actions make it impracticable for the authorised
officer executing the warrant (or an assisting officer making the
arrest) to inform the person of the reason for which he or she is
being arrested.

Subclause 100(9) provides that nothing in
clause 100 prevents the arrest of a person in accordance with any
other law (such as the Crimes Act).

Definitions

Subclause 100(10) sets out particular
definitions for the terms ‘dwelling house’ and
‘Judge’ for the purposes of the operation of clause
100. Subclause 100(10) provides that, for the purposes of clause
100, ‘dwelling house’ includes a conveyance, and a room
in a hotel, motel, boarding house or club, in which people
ordinarily retire for the night. Subclause 100(10) provides also
that, for the purposes of clause 100, ‘Judge’ means a
Judge of the Federal Court of Australia, or a Judge of the Supreme
Court of a State or Territory.

Clause 101: Powers of Judge in relation to
person arrested

Subclause 101(1) provides that a person who is
arrested under a warrant issued under clause 100 must be brought
before a Judge as soon as practicable after the arrest. Following
the person being brought before the Judge in accordance with
subclause 101(1), subclause 101(2) confers power on the Judge
to:

(a) Grant the
person bail on such security as the Judge thinks fit and on such
conditions as the Judge thinks are necessary to ensure that the
person appears as a witness at a hearing before the Integrity
Commissioner, or

(b) Order that the
person continue to be detained for the purpose of ensuring that the
person appears as a witness at a hearing before the Integrity
Commissioner, or

(c) Order that the
person be released.

Where a person is detained under subclause
101(2)(b), subclause 101(3) requires that the person must be
brought before a Judge within the time fixed by the Judge on the
person’s last appearance before a Judge, or if a Judge has
not fixed a time, within 14 days after the person was last brought
before a Judge. Subclause 101(4) provides a particular definition
of ‘Judge’ for the purposes of the operation of clause
101. Subclause 101(4) provides that, for the purposes of clause
101, ‘Judge’ means a Judge of the Federal Court of
Australia, or a Judge of the Supreme Court of a State or
Territory.

Subdivision G-Miscellaneous

Clause 102: Integrity Commissioner may
retain documents or things

Clause 102 allows the Integrity Commissioner
to retain documents or things produced to him or her pursuant to a
summons issued under clause 83. Under clause 102, the Integrity
Commissioner will be able to:

â¢ Take
possession of a document or thing,

â¢ Make copies
of a document or thing,

â¢ Take
extracts from a document, and

â¢ Retain
possession of a document or thing for as long as necessary for the
purposes of the investigation or public inquiry for which the
document or thing was requested.

Documents or things obtained pursuant to a
summons issued under clause 83 will not be able to be retained
indefinitely. Rather, the period of time that the Integrity
Commissioner can retain documents or things under clause 102 is
limited to the period for which those documents or things are
necessary for the purposes of the investigation or public inquiry
for which they were requested. At all times while the Integrity
Commissioner retains a document of thing obtained pursuant to a
summons issued under clause 83, the Integrity Commissioner must
allow persons who would otherwise be entitled to inspect or view
the document or thing to inspect or view the document or thing at
the times that the person would ordinarily be able to do so
(subclause 102(2)). Providing a power of inspection means that the
person is not completely deprived of the document or thing. Clause
102 is necessary to enable the Integrity Commissioner to access
documents and information relevant to an investigation into a
corruption issue. It also preserves the chain of evidence, for
example, should an investigation eventually lead to action being
taken by prosecutorial authorities or regulators. This clause is
similar to sections 2 and 6F of the Royal Commissions Act, section
18 of the Inspector-General of Intelligence and Security Act,
sections 28 and 29 of the ACC Act, sections 9 and 13 of the
Ombudsman Act and sections 18 and 19 of the Inspector-General of
Taxation Act.

Clause 103: Person may apply for legal and
financial assistance

Under subclause 103(1), a person who is
summoned under clause 83 to attend a hearing may apply to the
Attorney-General for assistance in respect of his or her attendance
at the hearing, or his or her representation at the hearing by a
legal practitioner. A person summoned to appear as a witness at a
hearing is also entitled to be paid allowances for travelling and
other expenses. These allowances are to be prescribed by
regulations so that they reflect current market conditions (see
subclause 83(5)). A person may also apply for assistance in respect
of an application to the Federal Court or the Federal Magistrates
Court under the Administrative Decisions (Judicial Review) Act
1977 for an order of review in respect of a matter arising
under this Act (see clause 221). Under subclause 103(2), a person
who is not giving evidence at a hearing before the Integrity
Commissioner; and is being represented at the hearing by a legal
practitioner with the consent of the Integrity Commissioner, may
apply to the Attorney-General for assistance in respect of that
representation. A person can also apply for assistance in respect
of an application to the Federal Court or the Federal Magistrates
Court under the Administrative Decisions (Judicial Review) Act
1977 for an order of review in respect of a matter arising
under this Act (see clause 221). Under subclause 103(3), the
Attorney-General can authorise the Commonwealth to provide a person
who has applied for assistance under subclause 103(1) or (2) with
financial or legal assistance in respect of the person’s
attendance at the hearing or the person’s representation at
the hearing by a legal practitioner, if the Attorney-General is
satisfied that it would involve substantial hardship to the person
to refuse the application or the circumstances of the case are of
such a special nature that the application should be granted.
Subclause 103(4) provides that Legal or financial assistance may be
given unconditionally or subject to such conditions as the
Attorney-General determines. Subclause 103(5) provides that an
instrument that determines the conditions on which legal or
financial assistance may be given is not a legislative
instrument.

Clause 104: Protection of Integrity
Commissioner etc .

Under clause 104, the Integrity Commissioner
and any Assistant Integrity Commissioner have the same protection
and immunity as a Justice of the High Court whilst performing their
duties, obligations and exercising their powers. A legal
practitioner assisting the Integrity Commissioner or representing a
person before the Integrity Commissioner has the same protection as
a barrister appearing for a person in the High Court.

Clause 104A: Protection of Witnesses
etc.

Clause 104A provides that the Integrity
Commissioner may make the necessary arrangements for the protection
of a person if the person’s safety may be prejudiced, or the
person may be subjected to intimidation or harassment, because the
person, or another person, has given or is to give, information, a
document or a thing to the Integrity Commissioner, or has appeared,
or will appear before the Integrity Commissioner in relation to a
hearing or a public inquiry under the Bill to give evidence or
information. These arrangements may include arrangements with the
Minister administering the legislation, a member of the AFP or a
member of a State or Territory police force.

This clause expressly does not affect the
Witness Protection Act 1994 , but provides a means by which
threats to witnesses and their associates that are less serious
than those addressed by that Act may be dealt with, in accordance
with the Senate Committee’s recommendation 4. In an
appropriately serious case, the Integrity Commissioner will also
have the authority to seek protection for a person under the
Witness Protection Act (see item 97 of Schedule 1 to the Law
Enforcement Integrity Commissioner (Consequential Amendments) Bill
2006).

Division 3-Entering certain places
during an investigation without a search warrant

Clause 105: Power to enter places occupied
by law enforcement agencies

Under clause 105 the Integrity Commissioner
and authorised officers are granted certain powers to enter places
occupied by law enforcement agencies. Under subclause 105(1), the
Integrity Commissioner or an authorised officer may:

(a) enter any place
occupied by a law enforcement agency at any reasonable time of the
day; and

(b) carry on the
investigation of the corruption issue at that place; and

(c) inspect any
documents relevant to the investigation that are kept at that
place; and

(d) make copies of,
or take extracts from, any documents so inspected; and

(e) for the purpose
of making a copy of, or taking an extract from, a document, remove
the document from that place; and

(f) seize things
found at that place if the Integrity Commissioner (or the
authorised officer) believes on reasonable grounds that:

(i) the thing is relevant to an indictable offence; and

(ii) seizure of the
thing is necessary to prevent its concealment, loss or destruction
or its use in committing an indictable offence.

‘Authorised officer’ is a term
defined in clause 5 of the Bill. Under subclause 105(2), while the
Integrity Commissioner (or authorised officer) retains a document
or thing, he or she must allow a person who would otherwise be
entitled to inspect the document or view the thing to do so at the
times that the person would ordinarily be able to do so. Subclause
105(3) provides that subclause 105(1) does not authorise a person
to enter, or carry on an investigation at:

(a) a place
referred to in paragraph 80(c) of the Crimes Act 1914 ;
or

(b) a place that is
a prohibited place for the purposes of the Defence (Special
Undertakings) Act 1952 under section 7 of that Act; or

(c) an area of land
or water, or an area of land and water, that is declared under
section 14 of the Defence (Special Undertakings) Act 1952 to
be a restricted area for the purposes of that Act;

(d) unless:

(e) the Minister
administering that Act (or another Minister acting for and on
behalf of that Minister) has approved the person entering the place
or area;

and

(f) the person
complies with any conditions imposed by the Minister giving the
approval in relation to:

(i) his or her entering that place or area; and

(ii) the manner in
which his or her investigation is to be conducted at that place or
area.

Subclause 105(4) confers power on the
Attorney-General if he or she is satisfied that conducting an
investigation at a place might prejudice the security or defence of
the Commonwealth, to, by written notice to the Integrity
Commissioner, declare the place to be a place to which this
subsection applies. Subclause 105(5) provides that while a
declaration made under subclause 105(4) is in force, subclause
105(1) does not authorise a person to do anything at the place
unless:

(a) a Minister
specified in the declaration (or another Minister acting for and on
behalf of that Minister) has approved the person entering the
place; and

(b) the person
complies with any conditions imposed by the Minister giving the
approval in relation to:

(i) his or her entering that place; and

(ii) the manner in
which his or her investigation is to be conducted at that
place.

Subclause 105(6) provides that a declaration
made by the Attorney-General under clause 105 is not a legislative
instrument.

Clause 106: Receipts of things seized under
warrant

Subclause 106 requires that if a thing is
seized, or removed from a place, under clause 105, the Integrity
Commissioner (or an authorised officer) must provide a receipt for
the thing. Subclause 106(2) further provides that if 2 or more
things are seized or moved, they may be covered by the one
receipt.

Division 4-Search Warrants

Subdivision A-Preliminary

Clause 107: Application to things under the
control of a person

This Clause prescribes that the persons
subject to search warrants under the Division will be the
“possessor”- a person who has the control of a thing in
any place, even if someone else has actual possession or custody of
the thing.

Subdivision B-Applying for a Search
Warrant

Clause 108: Authorised officer may apply
for a search warrant

Clause 108 sets out the process for
applications for warrants to search premises and persons. The
clause makes a distinction between applications for an
investigation warrant and applications for an offence warrants. The
terms “investigation warrant” and “offence
warrant” are defined in clause 5. An investigation warrant is
broader reaching than an offence warrant. An investigation warrant
will be sought where there is suspicion of evidential material
relevant to an investigation of a corruption issue or public
inquiry. Along similar lines to section 4 of the Royal
Commissions Act 1902 , subparagraph 108(1)(b) provides that an
investigation warrant to search premises will only be available
where the authorised officer has reasonable grounds for believing
that if a person was served with a summons to produce the
evidential material it would be concealed, mutilated, lost or
destroyed. An offence warrant will be sought in more definitive
circumstances where there is suspicion of evidential material
relevant to a particular offence against the law of a Commonwealth.
The term “authorised officer” is defined in clause 5
and will be either the Integrity Commissioner or a person
authorised pursuant to clause 140. The clause anticipates that an
authorised officer might require assistance from an
“assisting officer” which term is also defined in
clause 5. An assisting officer does not have to be an authorised
officer but might be required because of special skills, for
example a locksmith or a person qualified in the operation of
electronic equipment (see, for example, clause 123). Subclause
117(3) provides that a person who is not an Authorised Officer must
not take part in searching or arresting any person. An Authorised
Officer may apply for a warrant to search premises, carry out an
ordinary search or a frisk search of a person. The terms
“ordinary search” and “frisk search” are
defined in clause 5. Note that strip searches of a person are
prohibited by clause 114. An Authorised Officer must give
information on oath or affirmation of particulars of applications
and outcomes of previous warrants sought or executed on the subject
persons or premises in addition to, the grounds of their suspicions
and beliefs. The Authorised Officer must also give information on
oath or by affirmation, if and why he or she believes that it may
be necessary to use firearms in the execution of the warrant. The
definition of “authorised officer” is a delegation by
the Integrity Commissioner of the power to apply for a search
warrant to other persons. For this reason, the strict criteria of
requiring detailed information on oath or affirmation in relation
to the application is necessary. Information required regarding
previous warrants applied for and/or executed in relation to the
same people alerts the Issuing Officer to a situation of possible
harassment and/or lack of reasonable grounds.

Subdivision C-Issue of a Search
Warrant

Clause 109: When search warrants may be
issued

The issuing officer may issue a warrant if he
or she is satisfied that the Authorised Officer has reasonable
grounds to suspect that there is or will be within 72 hours,
evidential material on the premises or person which may be
concealed, lost, mutilated or destroyed. The term “issuing
officer” is defined in clause 5 and will differ according to
the nature of the warrant being applied for. An issuing officer for
an investigation warrant will be a Judge of the Federal Court of
Australia, a Federal Magistrate or of a court of State or
Territory. An issuing officer for an offence warrant will be a
magistrate. The term magistrate is defined in section 16C of the
Acts Interpretation Act 1901 .

Clause 110: Content of warrants

This clause sets out the information that is
required to be included in a warrant which must include a statement
as to whether the warrant is an investigation warrant or an offence
warrant. If it is an investigation warrant the warrant must state
the corruption issue or public inquiry to which it relates. If it
is an offence warrant, the warrant must state the offence to which
the warrant relates. In both cases the warrant must contain a
description of the premises or the name and description of the
person to be searched, the kinds of evidentiary material that are
to be searched for, the name of the Authorised Officer responsible
for execution of the warrant, the period in which the warrant
remains in force (which can be no longer than seven (7) days, yet
successive warrants may be issued) and the particular hours in
which the warrant may be executed. If the warrant is in relation to
premises, it must also include authorisation for the necessary
seizure of things found to prevent concealment, loss, destruction
or use, and whether an ordinary or frisk search of a person at, or
near the premises is authorised. Where the warrant is in relation
to a person, it must also include whether an ordinary or frisk
search is authorised and the authority for the necessary seizure of
things found in the person’s possession, or in an aircraft,
vehicle or vessel the subject person had operated or occupied
within 24 hours before the search to prevent the concealment, loss,
destruction or use.

Clause 111: Application by telephone etc.
and issue of warrant

An Authorised Officer may apply for a warrant
by telephone, fax, e-mail or other electronic means where there is
urgency or where a delay would in some way frustrate the effective
execution of the warrant. These applications must contain all
necessary information required from an ordinary warrant application
and an application made by these means must be where there is a
belief that evidentiary material is, or will be on the subject
premises or person within 48 hours (any time longer, up to 72 hours
will require an ordinary application). The Authorised Officer must,
no later than the day after either the warrant expires or is
executed, whichever is earlier, provide the completed form of a
warrant and the information duly sworn or affirmed containing the
reasonable grounds for belief to the Issuing Officer. If the form
of a warrant signed by the Issuing Officer is not produced, it will
be assumed that the exercise of power was not duly authorised
unless proved otherwise. This Clause acknowledges that in practice
there may be circumstances where there is a need for urgency and
therefore provides for faster process. Clauses 134, 135 and 136
create offences relating to the process for applying for telephone
warrants under this clause.

Clause 112: The things authorised by a
search warrant in relation to premises

Clauses 112 and 113 set out the powers of an
authorised officer in executing a warrant in relation to premises
and persons respectively. In the case of a warrant executed on
premises an Authorised Officer or Assisting Officer is allowed to
enter and search the subject premises and record fingerprints and
take samples for forensic purposes. The authorised officer can also
seize what is believed to be eligible seizable items (which is
defined in clause 5), the types of evidential material specified in
the warrant and any other things found if there is a belief that
seizure is necessary to prevent concealment, loss, destruction or
use of what may be evidentiary material. If the warrant allows, the
Authorised Officer may also conduct an ordinary or frisk search of
a person who is at, or near the premises. Note that strip searches
of a person are prohibited by clause 114. A person who is not an
Authorised Officer must not take part in searching any person.

Clause 113: The things authorised by a
search warrant in relation to a person

A search warrant executed in relation to a
person allows an Authorised or Assisting Officer to search the
person in the manner specified in the warrant, being either a frisk
or ordinary search as defined in clause 5 of the Bill. The
Authorised or Assisting Officer may search all things found in the
person’s possession, any aircraft, vessel or vehicle operated
or occupied by the person within the 24 hours before the search,
seize things specified in the warrant, take and record fingerprints
and forensic samples, seize other things found if there is a belief
that it is evidentiary material and the seizure is necessary to
prevent concealment, loss, destruction or use. The search of the
person must not be different from that authorised in the warrant.
Note that strip searches of a person are prohibited by clause 114
and that clause 117 provides that a person who is not an Authorised
Officer must not take part in searching any person.

Clause 114: Restrictions on personal
searches

A warrant may not authorise a strip or body
cavity search as the procedure is too invasive and not necessary
for the investigations predicted to be undertaken by the Integrity
Commissioner. This Clause protects a person who may be subject to
an investigation and subsequently a search under a warrant.
Subdivision F (clauses 130to 136) sets out specific provisions in
relation to executing a warrant in relation to a person.

Clause 115: When warrant may be executed
etc.

The Clause further imposes the obligation to
adhere to the conditions of the warrant. A warrant must not be
executed outside hours specified in the warrant. Items seized may
be made available to officers of other government agencies, if
necessary for the purpose of investigating or prosecuting an
offence. This Clause extends the information sharing Clauses of the
Bill and promotes cooperation amongst the law enforcement agencies.
It will also reduce the duplication in work and minimise delays in
investigations should evidence not be accessible from other
agencies.

Subdivision D-General Provisions
About Executing a Search Warrant

Clause 116: Announcement before
entry

Prior to entering premises under a warrant, an
Authorised Officer must announce that he or she is authorised to
enter, and provide any person at the premises with the opportunity
to allow the entry. Announcement of entry will not, however, be
required if the authorised Officer believes that immediate entry is
required to ensure either the safety of a person, or the effective
execution of the warrant. This Clause ensures the person is given
notice and provided with an opportunity to co-operate with the
Authorised Officer in the search. A search with co-operation is
often more successful and professional. The occupier of the
premises is also entitled to be made aware of the situation.

Clause 117: Availability of assistance and
use of force in executing a warrant

An Authorised or Assisting Officer may obtain
the assistance necessary and use a reasonable amount of force
whilst executing a warrant. A person who is not an Authorised
Officer must not take part in searching or arresting any person.
The Authorised Officer is given the discretion to use the necessary
force needed which allows for the Authorised Officer to protect him
or herself and others assisting in the execution of a warrant. The
requirement of having only Authorised Officers taking part in
searches and arrests is to ensure that these procedures are carried
out by only those who have been provided with training and
fulfilled the requirements to ensure that care, professionalism and
due diligence are present.

Subdivision E-Specific provisions
about executing a warrant relating to premises

Clause 118: Application

This is a formal provision providing that the
subdivision applies whare a warrant is executed at premises.

Clause 119: Copy of warrant to be shown to
occupier etc.

If an occupier or someone representing the
occupier is present at the premises, the Authorised Officer must
identify him or herself to the person and make a copy of the
warrant available to that person, and/or a person being searched
under the warrant. The person has the right to be informed and it
clarifies that the search is legal and all requirements have been
fulfilled to allow the procedure to take place.

Clause 120: Occupier entitled to watch
search

The occupier or someone representing the
occupier, is entitled to watch the search, or part thereof (more
than one area may be searched at a time), but such right ceases
when he or she impedes the search in any way. This Clause provides
the occupier with rights but those rights shall not conflict with a
search. In circumstances where an occupier can assist in the search
by providing instructions as to how to operate a device etc. it
will be useful for the Authorised Officer to have him or her
present.

Clause 121: Specific powers available to
person executing a warrant

An Authorised or Assisting Officer may take
photographs or video recordings at the premises for a purpose
incidental to the execution of the warrant, or with the written
consent of the occupier. The Authorised and Assisting Officers may
temporarily stop the search and leave the premises for up to one
(1) hour (or longer with the written consent of the occupier) and
then return to the premises and complete the search, only if the
warrant is still in force. If the execution of a warrant is stopped
by a Court Order which is later revoked or reversed on appeal, the
execution may be completed only if the Warrant is still in force.
This Clause ensures that under no circumstances should a warrant be
executed unless it is valid and in force, regardless of partial
execution or Court proceedings delaying etc. It prescribes the
Authorised Officer with the onus to re-apply for a new warrant
where an existing warrant expires for any reason. The strict
provision of this Clause is to ensure the admissibility of evidence
obtained and further, to protect the Commonwealth from being
exposed to an action for damages in relation to premises and
persons searched and items seized.

Clause 122: Use of equipment to examine or
process things

An Authorised or Assisting Officer may bring
any equipment necessary to examine and process things to determine
if they may be seized under the warrant. If it is not practicable
to examine or process things on the premises, or if the occupier
consents, things may be moved to another place. If things are
moved, the Authorised Officer must advise the occupier of the time
and place of any examination or processing, and allow him, her or a
representative to attend. An Authorised Officer may operate
equipment (other than electronic equipment) to examine or process
things to determine if they may be seized, only where the
Authorised or Assisting Officer believe the examination or
processing can be carried out without damaging the equipment or
thing. In circumstances where there may be a large amount of data,
searching through it all for evidentiary material whilst at the
premises will be time consuming. The Cybercrime Act 1995
provides that it is practical to move items where it will be faster
or less costly to search for evidentiary material. It is often the
case that computers and other electronic equipment hold a large
amount of data which is protected by complex security measures such
as encryption and passwords. Many experts may be required to
decipher multi levels of password protection which are often
designed to delete or alter data if the correct password is not
used. It is practical to operate the equipment to see if
evidentiary material is present, if so, move the equipment and
examine or process off the premises. The initial check for the
existence of evidentiary material is to ensure that equipment is
not unnecessarily seized. It is also important to engage experts to
ensure that valuable evidence is not lost or deleted, again,
exposing the Commonwealth to an action for damages.

Clause 123: Use of electronic equipment at
premises without expert assistance

An Authorised or Assisting Officer may operate
electronic equipment to see if evidentiary material is accessible,
if he or she believes that it can be operated without damage. If
evidentiary material is found, the equipment may be seized with any
disk, tape or associated device, only if it is not practicable to
document, or copy the evidentiary material, or if the possession of
such equipment constitutes an offence. This Clause permits an
Authorised Officer to copy all data held on a storage device if
some of the data contains evidentiary material. In circumstances
where it is not practical to make copies such as a computer where
the hard drive contains a large amount of data, an Authorised
Officer is not required to search through all the data during the
execution of the warrant at the premises, and copy only the
evidentiary material found at this time. Rather this Clause allows
the Authorised Officer to copy all of the data where an initial
search uncovers some evidentiary material or where the Authorised
Officer believes it may contain evidentiary material. For example,
the most effective way to search a large amount of data may be to
load it all to a single device and develop a program to search the
data.

Clause 124: Use of electronic equipment at
premises with expert assistance

If an Authorised or Assisting Officer believes
that an expert may access evidential material from electronic
equipment found at the premises, and the material may be destroyed,
altered or interfered with if action is not taken to secure the
equipment, the Authorised or Assisting Officer may, after notifying
the occupant in writing, take steps necessary to secure the
equipment, for up to 24 hours to allow it to be operated by an
expert. An Authorised or Assisting Officer may apply to an Issuing
Officer for an extension of time if it is believed that an expert
will not be available within 24 hours. The occupant must be
notified of the application for an extension and is entitled to be
heard. This Clause allows the Authorised Officer to follow a
procedure which adequately considers the occupier’s rights,
and allows for evidentiary material to be preserved until processed
or examined.

Clause 125: Person with knowledge of a
computer or a computer system to assist access etc.

An Authorised Officer may apply to an Issuing
Officer for an Order requiring a specified person to provide
information or assistance necessary to access data from a computer
on warrant premises. The Issuing Officer may grant the Order where
there are reasonable grounds to suspect that the specified person
can access evidentiary material from the computer, if he or she is
suspected of committing the offence stated in the warrant, if he or
she is the owner or the lessee, or the employee of the owner or
lessee of the computer, and has the relevant knowledge of the
computer or the network and the measures applied to protect the
data held, or accessible from the computer. A person that fails to
comply with such Order is liable to six (6) months imprisonment.
This Clause intends to secure the access and value of evidentiary
material stored in computers on warrant premises. Developments in
technology allow computers to store large amounts of data and have
complex security measures such as encryption and passwords to
protect information. Multi-level password protection is often
programmed to delete or alter data when an incorrect password is
provided and this Clause provides for assistance to ensure that
relevant data is not erased or altered by misuse.

Clause 126: Accessing data held on other
premises-Notification to occupier of those premises

When data accessed under Clause 123(1) is held
on premises other than the warrant premises, the Authorised Officer
must, if it is practicable to do so, notify the occupier of the
premises in relation to which the warrant is in force. If the
authorised officer intends to continue to access data on premises
other than the warrant premises then this information must also be
conveyed to the occupier. As most business computers are networked
to other computers, files on one computer are often accessible by
another computer. Accordingly, it is critical that the Authorised
Officers executing a search warrant are able to search material
accessible from the warrant premises, irrespective of where the
material is physically located. This Clause mirrors that of
Section 3LB of the Crimes Act 1914 and includes the
term practicable as a discretionary tool for the Authorised Officer
to evaluate the circumstances and consequences of advising the
third party.

Clause 127: Compensation for damage to
electronic equipment

If insufficient care is exercised when either
operating, or choosing a person to operate equipment, the
Commonwealth must pay reasonable compensation to the owner if the
equipment, data or programs are damaged. In determining reasonable
compensation, consideration will be given to whether or not the
owner, user, their agents or employees provided any appropriate
warnings or guidance for the operation of the equipment. If an
agreement on reasonable compensation cannot be reached, the owner
or user may institute proceedings in the Federal Court. This Clause
provides, that in circumstances where the Authorised or Assisting
Officers are negligent, compensation for damage is due to the
owner. The Cybercrime Act 2001 requires assistance to be
provided by an occupier when executing a warrant, to access data
etc. Non-compliance is an offence punishable by six (6) months
imprisonment.

Clause 128: Copies of seized things to be
provided

If a document, film, computer file or other
thing that can be readily copied is seized, the Authorised Officer
must provide a copy to the occupier if requested. This won’t
apply where the authorised officer believes that the data might
constitute evidential material (which is defined in clause 5) or if
the data is, at the premises, rendered into documentary form. This
Clause allows the person to obtain legal advice in relation to
copies of material seized while ensuring there can be no dispute as
to the state of evidence.

Clause 129: Receipts of things seized under
warrant

A receipt for items seized or moved under a
warrant must be provided by the Authorised or Assisting Officer to
ensure the proper handling and returning of evidence when it is no
longer required. This clause ensures there will be no dispute as to
an item not being returned as well as keeping records of
evidentiary material.

Subdivision F-Specific provisions
about executing a warrant relating to a person

Clause 130: Copy of warrant to be shown to
person

An Authorised Officer must identify themselves
to a person being searched and a copy of the warrant must be made
available to him or her. The person has a right to be informed of
the situation, prior to a search commencing. This identification
offers an opportunity for the person to co-operate as they are less
likely to resist with the officers which will make the search
easier on all involved.

Clause 131: Conduct of an ordinary search
or a frisk search

The terms “ordinary search” and
“frisk search” are defined in clause 5. If practicable,
an ordinary or frisk search of a person is to be conducted by a
person of the same sex. This is preferable, but not required. This
Clause will make the person being searched, and the Authorised or
Assisting Officer less uncomfortable or embarrassed.

Subdivision G-Offences

Clause 132: Making false statements in
warrants

A person (ie an authorised officer) commits an
offence if he or she knowingly makes a false or misleading
statement in applying for a search warrant and will be liable to
two (2) years imprisonment. This Clause intends to ensure that all
warrants executed are granted by a Judge or Magistrate on correct
information. The reasonable grounds to believe that evidentiary
material may be obtained stated in the application must be honest
and accurate.

Clause 133: Offence for stating incorrect
names in telephone warrants

A person commits an offence if he or she
states a name of a Judge or Magistrate on the form of search
warrant that differs to that of the Judge or Magistrate who
approved the telephone application and will be liable to two (2)
years imprisonment. This Clause is to ensure that the approval of a
search warrant is in all ways true and correct.

Clause 134: Offence for unauthorised form
of warrant

In circumstances where a person makes an
application for a search warrant by telephone, he or she commits an
offence if a matter is stated on the form of search warrant which
he or she knows to be a departure from the authority given by the
Judge or Magistrate and will be liable to two (2) years
imprisonment. This Clause intends to serve as a control on the
operation of telephone warrants. Potentially, telephone warrants
may cause problems with confusion, misinterpretation and honest
mistakes arising out of the haste at the time and this Clause will
ensure that persons applying for telephone warrants do not take
advantage of the process.

Clause 135: Offence for executing etc. an
unauthorised form of warrant

A person commits an offence if he or she
executes or presents a document purporting to be a search warrant
which he or she knows has not been approved, or departs from the
approval obtained from a Judge or Magistrate and will be liable to
two (2) years imprisonment. This Clause intends to prevent
Authorised Officers from failing to fulfil all requirements of a
valid search warrant.

Clause 136: Offence for giving unexecuted
form of warrant

A person commits an offence if he or she gives
a Judge or Magistrate a form of search warrant which is not the
form of search warrant that he or she executed under a telephone
application and will be liable to two (2) years imprisonment. This
Clause ensures that the telephone application granted is the same
as the search carried out. All of these offences carry a criminal
penalty making the Authorised Officer individually liable for their
own actions.

Subdivision H-Miscellaneous

Clause 137: Other laws about search, arrest
etc. not affected

This Division is not intended to limit or
exclude the operation of another law of the Commonwealth in
relation to the search of persons or premises, arrests or seizures.
These include, but are not limited to, the Cybercrime Act
2001, the Criminal Code Act 1995 and the Crimes Act
1914 (Part IAA- Search Warrants and Powers of Arrest). This
Division may be used despite the existence of the power under
another law.

Clause 138: Law relating to legal
professional privilege not affected

This Division does not affect the laws
relating to legal professional privilege.

Division 5-Powers of Arrest

Clause 139: Authorised officers may
exercise powers of arrest

This clause provides that authorised Officers
who are not “constables”, will still have the same
powers and duties as a constable under Divisions 4 and 5 of Part
IIA of the Crimes Act 1914 for the purpose of investigating
corruption issues. These powers and duties include those related to
arrest as well as search. The term “constable” is
defined in the Crimes Act as meaning a special member of the
Australian Federal Police or a member of the police force or police
service of a State or Territory. This Clause enables Authorised
Officers to invoke the powers of arrest and search that are given
to constables to perform their duties in relation to assisting the
Integrity Commissioner in the investigation of corruption issues.
It is not always going to be practicable to get a constable for
these duties considering that investigations will be involving AFP
etc. and an independent officer is desirable to carry out an arrest
and/or search on a person being investigated.

Division 6-Authorised
Officers

Clause 140: Appointment of authorised
officers

The Integrity Commissioner may appoint a
person in writing to be an Authorised Officer where, the person is
either a member of the AFP or, a staff member of the ACLEI
and a member of the AFP or a State or Territory Police force
(the head of that agency must agree) and the Integrity Commissioner
considers him or her to be suitable and qualified for the
appointment. This Clause seeks to ensure that Authorised Officers
exercising powers and duties under the Bill possess the upmost of
integrity, skills and experiences in investigations and obtaining
evidence. Authorised Officers are given the powers of arrest and to
apply and execute search warrants under the Bill and it is
essential that they are experienced, diligent and trustworthy.

Clause 141: Identity cards

The Integrity Commissioner must issue all
Authorised Officers an identity card in the form provided in the
Regulations, which includes a recent photograph of the Authorised
Officer, which must be returned to the Integrity Commissioner
immediately upon ceasing to be an Authorised Officer, a failure to
do so is punishable by one (1) penalty unit. This Clause intends to
ensure that Authorised Officers are easily identifiable. In
circumstances where Authorised Officers are executing a search
warrant on premises, the identity card can be displayed to
occupiers to confirm their authority.

PART 10- DEALING WITH EVIDENCE AND
INFORMATION OBTAINED IN INVESTIGATION OR PUBLIC INQUIRY

Clause 142: Evidence of Offence or
Liability to Civil Penalty

If the Integrity Commissioner obtains
admissible evidence rendering a person liable to a criminal or
civil penalty under a Commonwealth, State or Territory law, the
Integrity Commissioner must provide the evidence to the
Commissioner of the Australian Federal Police in the case of a
Commonwealth law, the head of the police force of the State or
Territory in the case of a State or Territory law, or an authority
or person who is authorised to prosecute the offence or commence
civil penalty proceedings under a Commonwealth, State or Territory
law.

Clause 143: Evidence that Could be Used in
Confiscation Proceedings

If the Integrity Commissioner obtains
admissible evidence rendering a person liable to proceedings under
the Proceeds of Crime Act 1987 , the Proceeds of Crime Act
2002 or a corresponding law of a State or Territory, the
Integrity Commissioner must provide the evidence to the
Commissioner of the Australian Federal Police in the case of a
Commonwealth law, the head of the police force of the State or
Territory in the case of a State or Territory law, or an authority
or a person who is authorised to commence proceedings under a
Commonwealth, State or Territory law.

Clause 144: Consultation with Law
Enforcement Agency Head Before Taking Action Under Section 142 or
Section 143

The Integrity Commissioner must take
reasonable steps to consult the head of a relevant agency prior to
providing a person or authority with evidence to prosecute an
evidence or commence civil or confiscation proceedings, unless it
is likely that an investigation or subsequent action would be
prejudiced by doing so. In these circumstances, the Integrity
Commissioner must advise the Minister that the relevant person has
not been consulted and the reasons for not consulting the person.
If the circumstances change so that advising the head of the
relevant agency of the decision on how to deal with the information
would no longer prejudice the investigation, then the agency
head’s right to be advised is revived.

Clause 145: Notification of Action Taken
Under Section 142 or Section 143

The Integrity Commissioner must inform the
head of a relevant law enforcement agency, government agency or
integrity agency if he or she takes under Clauses 142 or 143 in
relation to a corruption issue involving a law enforcement agency.
The Integrity Commissioner does not have to provide notification if
it is likely that doing so would prejudice an investigation. If the
Integrity Commissioner decides to withhold notification, he or she
must provide the Minister with reasons. If the circumstances change
so that advising the head of the relevant agency of the decision on
how to deal with the information would no longer prejudice the
investigation, then the agency head’s right to be advised is
revived.

Clause 146: Evidence of Breach of Duty or
Misconduct by Staff Member

During an investigation or public inquiry, if
the Integrity Commissioner obtains evidence of a breach of duty or
misconduct that would justify the termination of or disciplinary
action against a staff member or a secondee to a law enforcement
agency, the Integrity Commissioner must notify the head of the law
enforcement agency, the head of the home agency in the case of a
secondee and any relevant State or Territory integrity agency.

During an investigation or public inquiry, if
the Integrity Commissioner obtains evidence that a person was
wrongly convicted of an offence against a law of the Commonwealth,
a State or Territory, he or she must notify the Minister of the
evidence. The Integrity Commissioner must also notify the convicted
person that the evidence has been brought to the notice of the
Minister.

The Attorney-General may determine whether
particular information will be released by the Integrity
Commissioner. The Attorney-General may certify that the disclosure
of particular information would be contrary to the public interest
because it will prejudice the security, defence or international
relations of the Commonwealth, prejudice the proper performance of
the ACC, an investigation, inquiry, fair trial, a person’s
life or physical safety or disclose the identity of a confidential
source. In these circumstances, the Attorney-General is required to
copy the certificate to the Integrity Commissioner and to the head
of the agency that, or to the person who, holds the information or
documents concerned. This is to ensure that the parties who
need to know about a certificate are aware of the issue of the
certificate and can give effect to it in accordance with the
requirements of the Bill.

If the head of a law enforcement agency, or
another person, is required to provide information to the Integrity
Commissioner (Part 9, Division 1 and clauses 20, 21, 32 or 46), but
the information is certified under clause 149, the person or head
of the agency must not give the Integrity Commissioner the
information if to do so would contravene the terms of the
certificate.

Clause 151: Giving Another Agency Section
149 Certified Information

The head of a law enforcement agency must not
give another agency information required by clause 46 if the
information is certified under clause 149 and to do so would
contravene the terms of the certificate.

The Integrity Commissioner must not give the
head of a government agency or a special investigator information
required by clauses 29(2), 44, 50, 70, 156(6) or (9) if the
information is certified under clause 149 and to do so would
contravene the terms of the certificate.

The Integrity Commissioner must notify the
Minister in writing of any ACLEI corruption issue as soon as
practicable after becoming aware of the issue. A staff member of
ACLEI must notify the Minister of any ACLEI corruption issue that
relates to the conduct of a person who is, or was the Integrity
Commissioner. ACLEI corruption issue is defined in Section 8.

Clause 154: Referral of ACLEI Corruption
Issues by Other Persons

In addition to a person’s right to make
a complaint to the Commonwealth Ombudsman, a person can give an
allegation or information raising an ACLEI corruption issue to the
Minister, anonymously if he or she wishes. This may be done orally
or in writing, however the clause gives the Minister the discretion
to request that the allegation or information be put in writing
before he or she deals with the issue.

Clause 155: Person May Elect to be Kept
Informed

The Minister must ask the person making, or
referring the information or allegation raising an ACLEI corruption
issue, to elect whether or not he or she wishes to be kept informed
as to the action taken in relation to the matter, unless the person
refers the issue anonymously. The election can be revoked by the
person at any time.

Division 2- How Minister Deals with ACLEI
Corruption Issues

Clause 156: How Minister may Deal with
ACLEI Corruption Issues

When the Minister is notified or becomes aware
of an ACLEI corruption issue, he or she may refer the ACLEI
corruption issue to the Integrity Commissioner for investigation,
authorise a person to conduct a special investigation, or decide to
take no further action. The Minister must advise the Integrity
Commissioner if he or she chooses to authorise a special
investigation or take no further action. The Minister must not
refer an ACLEI corruption issue to the Integrity Commissioner if
the issue relates to the conduct of a current ACLEI staff member
who is employed under the Public Service Act 1999 . The role
of the Integrity Commissioner is restricted in this way so as to a
void a conflict between the Integrity Commissioner’s
functions under the Bill and his or her role as head of a Statutory
Agency for purposes of the Public Service Act. In circumstances
where a special investigator is authorised, the Integrity
Commissioner must provide any document or information in relation
to the ACLEI corruption issue in his or her possession or control
to a special investigator as soon as practicable after he or she is
authorised by the Minister. The Integrity Commissioner does not
have to provide the information if it contains information
certified under Clause 149 and doing so would be contrary to the
public interest according to the terms of the certificate issued by
the Attorney-General under Clause 149. This ensures the protection
of information which is not in the public interest to be disclosed.
The Attorney-General will have discretion as to whether or not
information should be shared.

Clause 157: Qualification to Conduct
Special Investigation

The Minister may authorise a person to conduct
a special investigation under Part 12, Division 4 of the Bill, if
he or she is enrolled as a legal practitioner and has been so for
at least five (5) years. This Clause prescribes that a Special
Investigator must have the same qualifications as the Integrity
Commissioner, as his or her functions and duties in the special
investigation of an ACLEI corruption issue are the same as that of
the Integrity Commissioner in the investigation of other corruption
issues.

Clause 158: Counsel assisting special
investigator

The Minister may appoint a legal practitioner
to assist a special investigator as counsel in relation to a
special investigation.

Division 3- Investigation by Integrity
Commissioner

Clause 159: Application of Division

This Division applies to investigations by the
Integrity Commissioner into complaints relating to a staff member,
or former staff member of the ACLEI under clause 156(2) and
prescribes the practice and procedures to be followed to deal with
these complaints.

Clause 160: Investigation and Investigative
Powers

The clause employs a similar investigative
procedure as that set out in Division 1 of Part 6 and Parts 9 and
10 for the investigation of ACLEI corruption issues. Division 1 of
Part 6 of the Bill relates to investigations by the Integrity
Commissioner, Part 9 relates to the Integrity Commissioner’s
powers in conducting an investigation or public inquiry and Part 10
relates to dealing with evidence obtained in an investigation or
public inquiry.

Clause 161: Keeping Minister and Person
Informed of Progress of the Investigation

The Integrity Commissioner has an obligation
to take such steps as he or she considers reasonable to keep the
Minister and the Complainant informed of the progress of the
investigation of an ACLEI corruption issue.

Clause 162: Report on Investigation

At the conclusion of an investigation, the
Integrity Commissioner must prepare a report. This report must
include findings, evidence and any action taken or to be taken in
relation to the complaint. This clause sets out the action the
Integrity Commissioner may take in relation to the complaint.
Possible action includes disciplinary or employment action, action
to rectify or mitigate the effects of the conduct subject to the
investigation or to remedy deficiencies in policy or practice which
allowed for the person to become a member of staff with the ACLEI
and engage in corrupt conduct without being discovered. The
Integrity Commissioner must exclude information from the report if
the Attorney-General has certified the disclosure would be contrary
to the public interest under section 149. The Integrity
Commissioner has the discretion to exclude information if he or she
is satisfied that the information is sensitive information. It is
intended that the decision of whether to exclude information
balance the need for the report to serve the public interest in
relation to the corruption issue and the prejudicial consequences
that might result from its inclusion. If information is excluded
the Integrity Commissioner must include it in a supplementary
report which sets out the information and the reasons for excluding
the information. This report must be given to the Minister under
clause 163.

Clause 163: Integrity Commissioner to Give
Report to Minister

The Integrity Commissioner must provide the
Minister with a copy of the report and any supplementary report. If
a public hearing has been held the Minister is required under
section 203 to table the report (but not the supplementary report)
before both Houses of Parliament.

Clause 164: Advising Complainant about the
Outcome of the Investigation

A person who has elected to be kept informed
must be advised by the Integrity Commissioner of the outcome of the
investigation unless the Integrity Commissioner is satisfied that
informing the person is likely to prejudice an investigation or any
related action. The Integrity Commissioner may advise the person by
giving them a copy of the whole or part of the report. When
advising the person, the Integrity Commissioner must not contravene
a section 149 certificate from the Attorney-General that the
disclosure of the information would be contrary to the public
interest. The Integrity Commissioner has the discretion to exclude
information if he or she is satisfied that the information is
sensitive information and it is desirable in the circumstances to
exclude that information. It is intended that the decision of
whether to exclude information balance the person’s need for
full information in relation to the corruption issue and the
prejudicial consequences that might result from its inclusion.

Clause 165: Advising Person Whose Conduct
is Investigated of Outcome of the Investigation

The Integrity Commissioner may advise the
person to which the complaint relates of the outcome of the
investigation and may provide them with a copy of either the whole
or part of the report. When advising the person, the Integrity
Commissioner must not contravene a section 149 certificate from the
Attorney-General that the disclosure of the information would be
contrary to the public interest. The Integrity Commissioner has the
discretion to exclude information if he or she is satisfied that
the information is sensitive information. It is intended that the
decision of whether to exclude information balance the
person’s need for full information in relation to the
corruption issue and the prejudicial consequences that might result
from its inclusion.

Division 4- Special Investigation

Clause 166: Application of Part

This Division sets out the powers and
procedures that the ACLEI can use when the Minister authorises a
person, known as the “special investigator” to conduct
a special investigation.

Clause 167: Investigation and Investigative
Powers

The clause operates in substantially the same
way as section 160 which deals with investigation of an ACLEI
corruption issue by the Integrity Commissioner. It employs a
similar investigative procedure for the special investigation as
that set out in Division 1 of Part 6 and Parts 9 and 10. Division 1
of Part 6 of the Bill relates to investigations by the Integrity
Commissioner, Part 9 relates to the Integrity Commissioner’s
powers in conducting an investigation or public inquiry and Part 10
relates to dealing with evidence obtained in an investigation or
public inquiry. Generally, the special investigator has the same
powers to investigate the ACLEI corruption issues as the Integrity
Commissioner has when investigating corruption issues in other law
enforcement agencies.

The special investigator has an obligation to
keep the Minister and the Complainant informed of the progress of
the investigation. This Clause ensures the Minister is fully
apprised of all investigations and has the opportunity to monitor
and evaluate the special investigator’s investigations. It is
also important to keep the complainant informed as it may be
necessary to engage the complainant’s co-operation to further
the investigation.

Clause 169: Report on Investigation

At the conclusion of an investigation, the
special investigator must prepare a report. This report must
include findings, evidence and any recommendations to the Minister
in relation to the complaint and reasons for those recommendations.
This clause sets out the action the special investigator may
recommend the Integrity Commissioner consider. Possible
recommendations include disciplinary or employment action, action
to rectify or mitigate the effects of the conduct the subject of
the investigation or to remedy deficiencies in policy or practice
which allowed for the person to become a member of staff with the
ACLEI and engage in corrupt conduct without being detected. This
list of options is intended to be exhaustive. The special
investigator is bound to exclude information from the report that
the Attorney-General has certified the disclosure of would be
contrary to the public interest under section 149 if one or more
public hearings were held. The special investigator has the
discretion to exclude information if he or she is satisfied that
the information is sensitive. It is intended that the decision of
whether to exclude information balance the need for the report to
serve the public interest in relation to the corruption issue and
the prejudicial consequences that might result from its inclusion.
If information is excluded the special investigator must include it
in a special report which sets out the information and the reasons
for excluding the information. This report must be given to the
Minister under Clause 170. This Clause intends to make the special
investigator accountable for the investigation process and any
recommendations made. It also allows a record to be made and is
intended to offer some valuable recommendations regarding the
corruption issue from an independent person.

Clause 170: Special Investigator to Give
Report to Minister

The Special Investigator must provide the
Minister with a copy of the report and any supplementary report. If
a public hearing has been held the Minister is required under
section 203 to table the report (but not the supplementary report)
before both Houses of Parliament. The Minister must then provide a
copy to the Integrity Commissioner.

The Minister may direct the Integrity
Commissioner to consider whether action should be taken in relation
to a person referred to in the report of the special investigator.
This clause acknowledges that some of the staff of ACLEI will be
appointed or employed under the Public Service Act 1999 and
that the Integrity Commissioner must comply with section 15 of this
Act when considering whether to take action.

Clause 172: Advising Complainant about the
Outcome of the Investigation

A person who has elected to be kept informed
must be advised by the special investigator of the outcome of the
investigation unless the special investigator is satisfied that
informing the person is likely to prejudice an investigation or any
related action. The Integrity Commissioner may advise the person by
giving them a copy of the whole or part of the report. If the
circumstances change so that advising the person of the decision on
how to deal with the information would no longer prejudice the
investigation, then the person’s right to be advised is
revived. When advising the person, the special investigator must
not contravene a section 149 certificate from the Attorney-General
that the disclosure of the information would be contrary to the
public interest. The special investigator has the discretion to
exclude information if he or she is satisfied that the information
is sensitive information and it is desirable in the circumstances
to exclude that information. It is intended that the decision of
whether to exclude information balance the person’s need for
full information in relation to the corruption issue and the
prejudicial consequences that might result from its inclusion. This
is reflected by subsection 5.

Clause 173: Advising Person Whose Conduct
is Investigated of Outcome of the Investigation

The special investigator may advise the person
to which the complaint relates, of the outcome of the investigation
and may provide a copy of either whole or part of the report.

When advising the person, the special
investigator must not contravene a section 149 certificate from the
Attorney-General that the disclosure of the information would be
contrary to the public interest. The special investigator has the
discretion to exclude information if he or she is satisfied that
the information is sensitive information and it is desirable in the
circumstances to exclude that information. It is intended that the
decision of whether to exclude information balance the
person’s need for full information in relation to the
corruption issue and the prejudicial consequences that might result
from its inclusion. This is reflected by subsection 4.

Division 5- Staff Members of ACLEI to
Report Corrupt Conduct

Clause 174: Staff Members of ACLEI to
Report Corrupt Conduct

This Clause imposes an obligation on all staff
members of ACLEI to report corrupt conduct. This obligation applies
to the Integrity Commissioner in relation to the conduct of staff
members or former staff members and to staff members in relation to
the conduct of the Integrity Commissioner or other staff members.
It is intended that the Integrity Commissioner notify the Minister
in writing and that ACLEI staff members notify the Integrity
Commissioner in writing. It is an offence to fail to notify unless
there are reasonable ground to believe that the relevant person
(the Minister or the Integrity Commissioner) has already been
notified. The defendant bears an evidential onus to prove that
reasonable grounds existed. The maximum penalty is 6 months
imprisonment.

PART 13- ADMINISTRATIVE PROVISIONS

Division 1 - Appointment etc. of Integrity
Commissioner

Clause 175: Appointment of Integrity
Commissioner

This Clause provides that the Integrity
Commissioner is to be appointed (or reappointed pursuant to section
33(4A) of the Acts Interpretation Act 1901 ) by written
instrument from the Governor-General on a full-time basis, for a
fixed term not exceeding five (5) years. The Integrity Commissioner
will be required to be a Judge or enrolled as a legal practitioner
of at least five (5) years. In circumstances where the Integrity
Commissioner appointed is a Judge of a State or Territory, the
Governor- General may enter into an arrangement with the Governor
of that State or the Administrator of that Territory, securing the
Judge’s services, including an arrangement for the State or
Territory to be reimbursed by the Commonwealth. The Clause also
provides a definition of ‘Judge’ for the purpose of the
Clause. The Integrity Commissioner is independently appointed by
the Governor-General in order to have an equality of status with
the heads of the bodies he or she oversees (the Commissioner of the
APF and the CEO of the ACC are also appointed by the
Governor-General).

Clause 176: Judge May be Appointed as
Integrity Commissioner

This Clause provides that a Judge may be
appointed as the Integrity Commissioner and his or her privileges
as the holder of judicial office will remain unaffected. However,
the Clause provides that a Judge appointed as the Integrity
Commissioner will cease to hold office as the Integrity
Commissioner if he or she is no longer a Judge. The Clause intends
to reserve privileges such as tenure of judicial office, rank,
title, precedence, salary etc. for Judges appointed as the
Integrity Commissioner.

Clause 177: Acting Appointment

Clause 177 provides that in circumstances
where there is a vacancy in the office of the Integrity
Commissioner or during any periods the Integrity Commissioner is
absent from duty or Australia, the Minister may appoint a person as
Acting Integrity Commissioner.

An Acting Integrity Commissioner must be
enrolled as a legal practitioner, and have been so for a minimum
period of five (5) years. Anything done by, or in relation to a
person purporting to act as Acting Integrity Commissioner is not
invalid merely because the occasion for appointment had not arisen,
a defect or irregularity existed in connection with the
appointment, the appointment ceased to have affect or the occasion
to act had not arisen or ceased.

Clause 178: Remuneration

This clause provides that subject to the
Remuneration Tribunal Act 1973 , the Integrity Commissioner
is to be paid a remuneration determined by the Remuneration
Tribunal. In the absence of a determination, the Integrity
Commissioner will be paid in accordance with the Regulations, which
also prescribe allowances. To avoid doubt, the clause provides that
where a Judge receiving salary or annual allowance is appointed as
the Integrity Commissioner, he or she will not be entitled to
receive remuneration under the Bill. Clause 175 also provides that
if the Judge is a Judge of a State or Territory, the
Governor-General may arrange for the Commonwealth to compensate
that State or Territory accordingly.

Clause 179: Leave

This clause provides that the Remuneration
Tribunal will determine the Integrity Commissioner’s
recreation leave entitlements. Further, the Minister may grant the
Integrity Commissioner a leave of absence on specified terms and
conditions.

Clause 180: Outside Employment

This Clause ensures that the Integrity
Commissioner does not engage in any paid employment outside the
Office of the Integrity Commissioner, without consent from the
Minister. The intention of the Clause is to minimise the occurrence
of a conflict of interests arising.

Clause 181: Other Terms and
Conditions

This Clause provides that the Integrity
Commissioner (other than a Judge) may only hold office as the
Integrity Commissioner on the terms and conditions which are
determined by the Governor-General in relation to matters not
covered by the Bill.

Clause 182: Resignation

This Clause provides that the Integrity
Commissioner may resign from their appointment as the Integrity
Commissioner by providing the Governor-General with a written
resignation.

Clause 183: Termination of
Employment

This Clause provides that except in
circumstances where the Integrity Commissioner is a Judge, the
Governor-General may terminate the Integrity
Commissioner’s appointment by reason of misbehaviour or
physical or mental incapacity. The Clause further provides that the
Governor-General must terminate the Integrity
Commissioner’s appointment (unless he or she is a Judge)
where the Integrity Commissioner becomes bankrupt, is absent from
duty (except if he or she is on leave) for 14 consecutive days or
28 days in a period of 12 months, if the Integrity Commissioner
engages in outside employment in contravention of Clause 180 of the
Bill or if he or she fails to comply with the disclosure of
interest provisions under Clause 184 of the Bill.

Clause 184: Disclosure of Interests

This Clause requires the Integrity
Commissioner to provide written notice to the Minister where he or
she has, or acquires, an interest that may conflict with the
performance of his or her functions as the Integrity
Commissioner.

Division 2- Appointment etc. of Assistant
Integrity Commissioners

Clause 185: Appointment of Assistant
Integrity Commissioners

This Clause provides that an Assistant
Integrity Commissioner is to be appointed by written instrument
from the Governor-General on a full-time or part-time basis, for a
fixed term not exceeding five (5) years. An Assistant Integrity
Commissioner is required to be a Judge or enrolled as a legal
practitioner of at least five (5) years. In circumstances where an
Assistant Integrity Commissioner appointed is a Judge, he or she
must be appointed on a full-time basis and if he or she is a Judge
of a State or Territory, the Governor-General may enter into an
arrangement with the Governor of that State or the Administrator of
that Territory, securing the Judge’s services, including an
arrangement for the State or Territory to be reimbursed by the
Commonwealth. The Clause also provides a definition of
‘Judge’ for the purpose of the Clause. An Assistant
Integrity Commissioner is required to assist the Integrity
Commissioner with the functions and duties prescribed in the Bill
and he or she will be required to be familiar with the rights and
obligations of those involved in investigations and hearings.
Clause 219 of the Bill also authorises the Integrity Commissioner
to delegate any of his or her powers (except to hold a hearing for
the purpose of a public inquiry) to an Assistant Integrity
Commissioner.

Clause 186: Judge may be Appointed as an
Assistant Integrity Commissioner

This Clause provides that a Judge may be
appointed as an Assistant Integrity Commissioner (on a full-time
basis only, pursuant to Clause 185) and his or her privileges as
the holder of judicial office will remain unaffected. However, the
Clause provides that a Judge appointed as an Assistant Integrity
Commissioner will cease to hold office as an Assistant Integrity
Commissioner if he or she is no longer a Judge. The Clause intends
to reserve privileges such as tenure of judicial office, rank,
title, precedence, salary etc. for Judges appointed as an Assistant
Integrity Commissioner.

Clause 187: Acting Appointments

Clause 187 provides that in circumstances
where there is a vacancy in the office of an Assistant Integrity
Commissioner or during any periods an Assistant Integrity
Commissioner is absent from duty or Australia, the Minister may
appoint a person as an Acting Assistant Integrity Commissioner. An
Acting Assistant Integrity Commissioner must be enrolled as a legal
practitioner, and have been so for a minimum period of five (5)
years. Anything done by, or in relation to an Acting Assistant
Integrity Commissioner is not invalid merely because the occasion
for appointment had not arisen, a defect or irregularity existed in
connection with the appointment, the appointment ceased to have
affect or the occasion to act had not arisen or ceased.

Clause 188: Remuneration

This Clause provides that subject to the
Remuneration Tribunal Act 1973 , an Assistant Integrity
Commissioner is to be paid a remuneration determined by the
Remuneration Tribunal. In the absence of a determination, an
Assistant Integrity Commissioner will be paid in accordance with
the Regulations, which also prescribe allowances. To avoid doubt,
the Clause provides that where a Judge receiving salary or annual
allowance is appointed as an Assistant Integrity Commissioner, he
or she will not be entitled to receive remuneration under the Bill.
Clause 185 also provides that if the Judge is a Judge of a State or
Territory, the Governor-General may arrange for the Commonwealth to
compensate that State or Territory accordingly.

Clause 189: Leave

This Clause provides that the Remuneration
Tribunal will determine the recreation leave entitlements of an
Assistant Integrity Commissioner appointed on a full-time basis.
Further, the Minister may grant a leave of absence to an Assistant
Integrity Commissioner appointed on a full-time basis, on the
Minister’s specified terms and conditions. The Integrity
Commissioner may grant any Assistant Integrity Commissioner
appointed on a part-time basis a leave of absence on the terms and
conditions determined by the Integrity Commissioner.

Clause 190: Outside Employment

This Clause provides that an Assistant
Integrity Commissioner appointed on a fulltime basis must not
engage in any paid employment outside the duties of his or her
office without prior consent from the Minister. This Clause further
provides that an Assistant Integrity Commissioner appointed on a
part-time basis must not to engage in any paid employment outside
the duties of his or her office, which may conflict with the duties
of an Assistant Integrity Commissioner.

Clause 191: Other Terms and
Conditions

This Clause provides that an Assistant
Integrity Commissioner (other than a Judge) may only hold office as
an Assistant Integrity Commissioner on the terms and conditions
which are determined by the Governor-General in relation to matters
not covered by the Bill.

Clause 192: Resignation

This Clause provides that an Assistant
Integrity Commissioner may resign from their appointment as an
Assistant Integrity Commissioner by providing the Governor- General
with a written resignation.

Clause 193: Termination of
Employment

This Clause provides that except in
circumstances where an Assistant Integrity Commissioner is a Judge,
the Governor-General may terminate the Assistant Integrity
Commissioner’s appointment by reason of misbehaviour,
physical or mental incapacity, if the Assistant Integrity
Commissioner becomes bankrupt or fails to comply with the
disclosure of interest under Clause 194. The Governor-General
may terminate the appointment of an Assistant Integrity
Commissioner appointed on a full-time basis where he or she is
absent from duty for 14 consecutive days or 28 days in a period of
12 months (except if he or she is on leave) or engages in outside
employment in contravention of Clause 190. The Governor-General
may terminate the appointment of an Assistant Integrity
Commissioner appointed on a part-time basis in circumstances where
he or she engages in paid employment in contravention of Clause
190.

Clause 194: Disclosure of Interests

This Clause requires an Assistant Integrity
Commissioner to provide written notice to the Minister where he or
she has, or acquires, an interest that may conflict with the
performance of his or her functions as an Assistant Integrity
Commissioner.

Division 3- The Australian Commission For
Law Enforcement Integrity

Clause 195: Establishment

This Clause establishes ACLEI, being the
Australian Commission for Law Enforcement Integrity and consisting
of the Integrity Commissioner, any Assistant Integrity Commissioner
and staff. The intention of this Clause is to form the independent
body with the powers to prevent, detect and investigate corruption
within the Australian Government law enforcement agencies.

Clause 196: Function

This Clause prescribes that the function of
ACLEI is to assist the Integrity Commissioner in performing his or
her duties in relation to dealing with corruption issues as
outlined in Clause 15 of the Bill.

Clause 197: Staff

This Clause provides that staff members of
ACLEI will be appointed or employed under the Public Service Act
1999 and together, the Integrity Commissioner and the APS
employees assisting the Integrity Commissioner constitute a
Statutory Agency. To avoid doubt, the Clause also provides that the
Integrity Commissioner is the head of the Statutory Agency.

Clause 198: Engagement of
Consultants

This Clause provides that the Integrity
Commissioner may engage suitable persons as consultants to ACLEI
for a period of up to two (2) years, and under any other such terms
and conditions as determined by the Integrity Commissioner. The
consultant’s contract may only be extended beyond two (2)
years where it is necessary for the completion of a particular task
that was commenced during the initial two (2) year period.

Clause 199: Secondment of Persons to Assist
Integrity Commissioner

This Clause provides that the Integrity
Commissioner may make arrangements with the Commissioner of the
AFP, the head of a police force of a State, Territory or foreign
country, the agency head of a Commonwealth government agency, the
head of a police integrity agency or the head of an overseas
government agency with similar functions to an integrity agency, to
make its members available to perform services in connection with
the Integrity Commissioner’s functions. The person may only
be engaged under arrangement for a period of two (2) years, which
may only be extended for the completion of a particular task
commenced during the initial two (2) year period. This Clause also
provides that in circumstances where the Integrity Commissioner
engages the services of existing government agency’s staff,
the Integrity Commissioner may also make an arrangement for the
Commonwealth to reimburse that State or Territory accordingly.

Clause 200: Counsel Assisting Integrity
Commissioner

This Clause provides that the Integrity
Commissioner may appoint a legal practitioner as Counsel to assist
him or her generally, or in relation to a particular investigation
or public inquiry. Counsel assisting the Integrity Commissioner
will be entitled to examine and cross-examine witnesses as the
Integrity Commissioner sees fit under Clause 88, and have same
powers and immunity as provided to Counsel appearing in the High
Court.

Division 4- Public Reporting

Clause 201: Annual Report

This Clause provides that the Integrity
Commissioner must give a report which is in accordance with section
34C of the Acts Interpretation Act 1901, to the Minister to
be presented in Parliament on the performance of the Integrity
Commissioner’s functions during each financial year. The
Clause prescribes all matters to be addressed in the report and
includes particulars of corruption issues notified under Clause 19,
corruption issues raised by information or allegations under
Clauses 18 and 23, corruption issues dealt with on the Integrity
Commissioner’s own initiative, corruption issues investigated
and/or referred to other government agencies for investigation. The
Clause also provides that the report must also include a
description of all investigations considered to raise significant
issues or developments in law enforcement and may include
statistics, patterns, trends, the nature and scope of corruption in
law enforcement agencies and other Commonwealth government agencies
with a law enforcement function. The Integrity Commissioner must
also provide any recommendations for changes to laws or
administrative practices in Commonwealth government agencies. The
report must also include the number of investigations which
resulted in criminal confiscation proceedings, details of, and the
result of, applications made to the Federal Court or the Federal
Magistrate’s Court for orders of review of matters arising
under the Bill, particulars of any other Court proceedings
involving the Integrity Commissioner and particulars of
certificates issued under clause 149. (This last requirement
implements, in modified form, the Senate Committee’s
recommendation 9.)

Clause 202: Inter-Governmental Committee
Comments on Annual Report

This Clause provides that where an annual
report under Clause 201 mentions the ACC, the Minister must give a
copy of the annual report to the Inter-Governmental Committee. Any
comments made by the Inter-Governmental Committee in relation to
the report, are to be laid before each House of the Parliament
within fifteen (15) sitting days of the Minister’s receipt of
the comments.

Clause 203: Reports on Investigations and
Public Inquiries

This Clause provides that the Minister must
cause reports given to him or her by the Integrity Commissioner or
a Special Investigator under Clauses 54, 73 162 or 169 relating to
a public hearing, to be laid before each House of Parliament within
fifteen (15) sitting days of receipt of the report. The Clause
further provides that prior to the report being tabled, the
Minister must remove all information from the report that could
endanger a person’s safety, prejudice an investigation or
proceedings brought as a result of an investigation, or compromise
operational activities or methodologies of ACLEI or a law
enforcement agency. To avoid doubt, the Clause also particularises
that a supplementary report is not required to be tabled in
Parliament.

Clause 204: Special Reports

This Clause provides that the Integrity
Commissioner may give the Minister a special report on the
operation, function and exercise of his or her powers for part of a
year to be presented in Parliament. The Minister must cause the
report to be laid before each House of the Parliament within
fifteen (15) sitting days after receipt. The Integrity Commissioner
must not disclose any opinions or findings in a special report
which are critical of a government agency or person in a report,
unless the head of the agency or the person has been given an
opportunity to appear, or have a representative appear before the
Integrity Commissioner to make submissions in relation to the
subject matter.

Clause 205: Inter-Governmental Committee
Comments on Special Report in Relation to ACC

This Clause provides that where a special
report prepared under Clause 204 relates to the ACC, the Minister
must provide a copy to the Inter-Governmental Committee. Any
comments the Inter-Governmental Committee choose to make are to be
laid before each House of the Parliament within fifteen (15)
sitting days of the Minister’s receipt of those comments.

Clause 206: Contents of Annual or Special
Report

This Clause provides that an annual report
prepared under Clause 201 or a special report prepared under Clause
204 must not include Clause 149 certified information. Further, the
Clause provides that the Integrity Commissioner may exclude
information from a report where the information is sensitive and it
is desirable to exclude the information, however, in doing so, the
Integrity Commissioner must seek to balance the public interest
served and the prejudicial consequences occurring by the disclosure
of the information in the report.

Division 5- Confidentiality
Requirements

Clause 207: Confidentiality Requirements
for ACLEI Staff

This Clause provides that a person who either
directly or indirectly, whilst they are, or were a staff member of
ACLEI makes record, divulges or communicates any information
disclosed or obtained under the Bill, acquired by being a staff
member of ACLEI, or in the course of his or her duties as a staff
member of ACLEI, is liable to 60 penalty units and/or one (1) year
imprisonment, subject to Clauses 208 and 209.

Clause 208: Exceptions to Confidentiality
Requirements

This Clause provides that Clause 207 does not
prevent a staff member from making records of, divulging or
communicating information acquired in the performance of his or her
duties for the performance of the functions of the Integrity
Commissioner under the Bill. Clauses such as 44, 50 and 70 allow
for information sharing with other agencies and, for this purpose,
staff members of ACLEI are permitted to disclose information
obtained.

Subclause 208(3) permits the Integrity
Commissioner to disclose information to the heads of other
Commonwealth and State/Territory government agencies if, having
regard to the functions of the agency, the Integrity Commissioner
is satisfied that it is appropriate to do so. This subclause
will be the general source of authority for disclosures of
information (as opposed to admissible evidence) to other government
agencies outside of the Integrity Commissioner’s conduct own
investigations and public inquiries, in a way that ensures that all
agencies with a legitimate interest may receive information that is
relevant to them. The Integrity Commissioner is only permitted to
disclose information under subclause 208(3) where a law
corresponding to clause 207 is in force with respect to
confidentiality of information acquired by persons within that
agency.

This Clause provides that Clause 207 does not
prevent the disclosure of information when required under another
Commonwealth law. This Clause also provides that the Integrity
Commissioner is authorised to disclose information to a particular
person where necessary to protect the person’s life or
safety. However, the authority to disclose information given to the
Integrity Commissioner is subject, unless another Commonwealth law
requires disclosure to any specific contrary provisions in the Bill
that are applicable to particular cases. For example, a
certificate issued by the Attorney-General under clause 149 may
prohibit the Integrity Commissioner from disclosing particular
information to another government agency.

Clause 209: Disclosure by the Integrity
Commissioner in Public Interest etc.

This Clause provides that the Integrity
Commissioner may disclose information, except for Clause 149
certified information to a person, to the public or a section of
the public about the performance of his or her functions or an
investigation where the disclosure is in the public interest. The
Clause provides that prior to disclosing any sensitive information,
the Integrity Commissioner must consider a balance between the
public interest and the prejudicial consequences that may result in
disclosing the information.

Clause 210: Opportunity to be Heard

This Clause provides that the Integrity
Commissioner must not disclose any opinions or findings which are
critical of a government agency or person, unless the head of the
agency or the person has been given an opportunity to appear, or
have a representative appear before the Integrity Commissioner to
make submissions in relation to the subject matter.

This Clause provides that a person who is, or
has been a staff member of ACLEI can not be compelled to disclose
information that was obtained under the provisions of the Bill,
which were acquired because of being, or having been a staff member
of ACLEI, before any Court proceedings or a person authorised to
hear, receive and examine evidence. However, the Clause provides
that a staff member or former staff member of ACLEI will be
compelled to provide evidence in proceedings where either the
Integrity Commissioner, a delegate of the Integrity Commissioner or
a person authorised by the Integrity Commissioner are party to
proceedings in official capacity. Staff members of ACLEI may also
be compelled to provide evidence in proceedings brought in carrying
out a provision of the Bill or proceedings resulting from an
investigation. To avoid doubt, this Clause confirms that
‘produce’ includes permit access to and
‘production’ has a corresponding meaning.

PART 14 - PARLIAMENTARY JOINT COMMITTEE ON
THE AUSTRALIAN COMMISSION FOR LAW ENFORCEMENT INTEGRITY

Clause 212: Definitions

This Clause defines key terms used in this
Part. The Parliamentary Joint Committee on the Australian
Commission for Law Enforcement Integrity will be referred to as the
‘Committee’ and members of the Committee will be
referred to as a ‘member’.

Clause 213: Joint Committee on the
Australian Commission for Law Enforcement Integrity

This Clause provides that as soon as is
practicable after the first session of each Parliament, a Joint
Committee of members is to be appointed by the existing practices
of appointing members to serve on joint select committees for both
Houses of the Parliament. The Committee will be made up of five (5)
members of each House. Members of the Committee cannot hold the
office of Minister, President, Speaker, Deputy-President or Chair
of Committees and will cease to be a member of the Committee if he
or she obtains one of these offices after their appointment. Either
House may appoint one of its members to fill a vacancy amongst the
members of the Committee appointed by that House.

Clause 214: Powers and Proceedings of the
Committee

This Clause requires all matters relating to
the powers and proceedings of the Committee to be determined by
resolution of both Houses of Parliament.

Clause 215: Duties of the Committee

This Clause provides that the Committee must
monitor, review and report to the government on any relevant matter
that should be directed to the government’s attention. The
Committee must report to the government on matters deemed
desirable, and must question and inquire into any matter posed by
either House in relation to the Integrity Commissioner’s
performance, ACLEI, annual and special reports of ACLEI, trends in
corruption generally and in Commonwealth law enforcement agencies,
the integrity of the staff within Commonwealth law enforcement
agencies, the changes to the Integrity Commissioner’s
functions, powers, procedures or ACLEI structure. To avoid doubt,
this Clause provides that the Committee is not authorised to
investigate a corruption issue or ACLEI corruption issue, or
reconsider decisions or recommendations made by the Integrity
Commissioner or a special investigator.

Clause 216: Disclosure to Committee by
Integrity Commissioner

This Clause provides that the Integrity
Commissioner must inform the Committee when requested, of the
general conduct of ACLEI operations and provide information related
to investigations and inquiries unless, the information is Clause
149 certified information. If the Integrity Commissioner is
satisfied that the information is, or includes sensitive
information and the prejudicial consequences outweigh the public
interest served by providing the information to the Committee, the
Integrity Commissioner may also decide not to comply with the
Committee’s request. In circumstances where the Integrity
Commissioner does not provide requested information to the
Committee, the Committee may refer their request to the Minister,
who will then determine whether or not the information is sensitive
information, and, if so, whether the prejudicial consequences
outweigh the public interest served by providing the information to
the Committee. The Minister must not provide reasons for this
determination.

Clause 217: Disclosure to Committee by
Minister

This Clause provides that the Minister must
comply with a request from the Committee for information in
relation to a special investigation or the disclosure to the
Committee would contravene a certificate issued under Clause 149.
The Clause further provides that the Minister may decide not to
comply with the Committee’s request where he or she is
satisfied that the information is, or includes sensitive
information and the prejudicial consequences outweigh the public
interest served by providing the information to the Committee.

Clause 218: Ombudsman to Brief Committee
About Controlled Operations

This Clause provides that the Committee must
meet in private once each year to receive a brief from the
Commonwealth Ombudsman about the Integrity Commissioner’s
involvement in controlled operations. Due to the nature of the
briefing, it is necessary for the Committee to meet in private in
order to maintain the confidentiality of persons involved and to
ensure the non- disclosure of operational information. The
arrangement will be similar to that currently in place in respect
of the Parliamentary Joint Committee that oversees the operations
of the ACC.

PART 15 - MISCELLANEOUS

Clause 219: Delegation

This Clause authorises the Integrity
Commissioner to delegate all or any of their powers, except the
power to hold a hearing for a public inquiry, to an Assistant
Integrity Commissioner. Further, this Clause authorises the
Integrity Commissioner to delegate all or any of their powers,
except for the powers to hold a hearing to conduct a public
inquiry, summon a person or enter premises without a warrant, to a
staff member of ACLEI who is a SES, or acting SES employee. The
delegation authorising the Assistant Integrity Commissioner or
ACLEI staff member with the Integrity Commissioner’s powers
must be in writing and signed by the Integrity Commissioner.

Clause 220: Offence of
Victimisation

The Clause provides that any person who
causes, or threatens to cause detriment to another person (the
‘victim’) on the basis that the victim refers, notifies
or produces documents to the Integrity Commissioner, the Minister
or a special investigator in relation to a corruption issue or an
ACLEI corruption issue, is liable to two (2) years imprisonment.
Where a victim is threatened, whether the threat is express,
implied, conditional or unconditional, the prosecution of the
offence does not require proof that the victim actually feared the
threat would be carried out. The burden is lowered with the
intention of pursuing all threats made, regardless of the intensity
and to demonstrate that threatening witnesses or those providing
assistance to the Integrity Commissioner is not tolerated. The
Clause intends to ensure that persons involved in an investigation
by the Integrity Commissioner can assist in the investigation and
be protected from harassment or violence by reason of their
involvement.

Clause 221: Legal and Financial Assistance
in Relation to Applications for Administrative Review

This Clause provides that in relation to an
application or proposed application to the Federal Court or the
Federal Magistrates Court for an order of review of a matter
arising under the Bill (pursuant to the Administrative Decisions
(Judicial Review) Act 1977 ) a person may apply to the
Attorney-General for legal and financial assistance. Where an
application for legal and/or financial assistance is made, the
Attorney- General may authorise the Commonwealth to provide such
assistance, either unconditionally or subject to specified terms,
if satisfied that a substantial hardship would be suffered if
assistance was refused, or where the circumstances of the case are
of a special nature. The intention of this provision is to attempt
to provide an equal access to justice. The assistance can provide
resources for representation and minimise a potential disadvantage.
Further, the assistance will allow access to legal advice to assess
claims and prevent applications being pursued where there is no
merit, saving the Court’s time.

Clause 222: Immunity from Civil
Proceedings

A staff member of ACLEI is not liable to civil
proceedings in relation to an act or omission done in good faith
during the performance, or purported performance of their functions
under the Bill. A person requested by the Integrity Commissioner to
assist ACLEI is not liable to civil proceedings in relation to an
act or omission done in good faith during the performance, or
purported performance, of assisting ACLEI. A special investigator
is not liable to civil proceedings in relation to an act or
omission done in good faith during the performance, or purported
performance of their functions under Part 12, Division 4 of the
Bill. A person requested by a special investigator to assist him or
her, is not liable to civil proceedings in relation to an act or
omission done in good faith during the performance, or purported
performance of assisting the special investigator. In circumstances
where information, documents or evidence is produced to the
Integrity Commissioner or a special investigator, a person is not
liable to any action, suit, claim or proceeding in relation to the
loss, damage or injury suffered by another person as a result of
the evidence being provided to the Integrity Commissioner or
special investigator. The intention of the Clause is to allow
staff members of ACLEI to perform their duties, functions and
exercise the powers authorised under the Bill, without the fear of
personal liability for any actions they perform. For example, the
Bill authorises staff members of ACLEI to use a reasonable amount
of force where necessary in executing an arrest or search warrant
under Clause 117. Accordingly, immunity from civil proceedings is
necessary as staff members of ACLEI will potentially be exposed to
actions for damages etc. in the performance of their duties.

Clause 223: Immunities from Certain State
and Territory Laws

The Integrity Commissioner, an Assistant
Integrity Commissioner and staff members of ACLEI are not required
to obtain a licence or permission under any State or Territory law,
for the purpose of doing an act or thing in the course of their
respective duties under the Bill. Further, ACLEI are not required
to register any vehicle, vessel, animal or article belonging to the
Commonwealth. The Clause intends to prevent ACLEI being restricted
in the performance of their duties by imposing different State and
Territory regulations. Due to ACLEI’s function of
investigating corruption issues nationally, staff members will be
qualified under the Commonwealth.

Clause 223A: Review of operation of
Act

This clause provides for the Minister to
arrange an independent expert review of the operation of the Bill
after three years of operation. The reviewer/s will be
required to report to the Minister within six months after the end
of the review period. The Integrity Commissioner and ACLEI
staff members will be required to assist the reviewer/s.
There will be an opportunity for written submissions from the
public and the Minister is required to table the report.
However, these requirements will not apply if a parliamentary
committee has started or completed a review of the operation of the
Bill by the end of the review period. This clause implements
the Senate Committee’s recommendation 11.

Clause 224: Regulations

This Clause provides that the Governor-General
may make Regulations prescribing matters required or permitted by
the Bill, or which are necessary or convenient to be prescribed.
For example, in the future, it may be necessary for the Regulations
to prescribe other agencies to be included as a ‘law
enforcement agency’ for the purposes of the Bill and Clause 5
currently reflects that any additional Commonwealth government
agencies with a law enforcement function may be prescribed by the
Regulations.

The regulations may also require information
or reports given under prescribed provisions of the Bill to be
given to prescribed persons in specified circumstances. This
subclause is intended to deal with issues arising from the role of
the AFP, under section 8 of the AFP Act, as the provider of
policing services to the Australian Capital Territory and certain
other Territories. For example, regulations made under
subclause (2) could impose an obligation on the Integrity
Commissioner to provide information about an investigation of a
corruption issue affecting ACT policing to the ACT Police Minister
in the same circumstances in which the Integrity Commissioner must
provide such information to the Commonwealth Minister.